PETITION FOR WRIT OF MANDAMUS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE

EUN JUNG LIM,
(Petitioner)
vs.
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN; and HERBERT
CONRAD.
(Respondents)

Court of Appeal No. _______________
Trial Court Case No: 30-2022-
01242187

Appeal from the Superior Court of California, Orange County

Trial Court Judge: Hon. SHELIA B. FELL

PETITION FOR WRIT OF MANDAMUS

EUN JUNG LIM
17192 Murphy Ave., # 17723
Irvine, CA 92623
949/229-0302
invokemyright@protonmail.com
Petitioner, Pro Se

CARROLL, KELLY, TROTTER &amp;
FRANZEN
MICHAEL J. TROTTER (SBN 139034)
JO LYNN VALOFF (SBN 177081)
111 West Ocean Boulevard, 14th Floor
Post Office Box 22636
Long Beach, California 90801-5636
Telephone No. (562) 432-5855 / Facsimile No.
(562) 432-8785
mjtrotter@cktflaw.com / jlvaloff@cktflaw.com
Attorneys for Respondent, Hoag Memorial
Hospital Presbyterian

TABLE OF CONTENTS

TABLE OF CONTENTS 2
TABLE OF AUTHORITIES 3
PETITION FOR WRIT OF MANDAMUS 5
PRAYER 5
VERIFICATION 5
MEMORANDUM OF POINTS AND AUTHORITIES 6
I. INTRODUCTION 6
II. STATEMENT OF FACTS 6
ARGUMENTS 10
I. PETITIONER IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF
LAW 10
II. RESPONDENT HAS FAILED TO SATISFY THE COURT WHY SUMMARY
JUDGMENT SHOULD NOT BE ENTERED AGAINST THEM 14
III. THE DECISION WAS ENTERED BY A RETIRED JUDGE 16
IV. PETITIONER WAS DENIED THE RIGHT TO COURT REPORTER
SERVICES 18
CONCLUSION 20
CERTIFICATE OF COMPLIANCE 21
CERTIFICATE OF SERVICE 22

TABLE OF AUTHORITIES

Cases
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 10
Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App 4th 454, 468 13
Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th
1132, 1144-1145 9
Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847 8
Jameson v. Desta, 5 Cal.5th 594 (Cal. 2018) 16
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 16
Kelly v. First Astri Corp. (1999) 72 Cal. App. 4th 462, 470) 8
Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092. 12
LLP Mortg. v. Bizar (2005) 126 Cal.App. 4th 773, 776 10
Lyons v. Security Pacific Nat’l Bank (1995) 40 Cal. App. 4th 1001, 1006 13
Mathew v. Eldridge, 424 U.S. 319, 332-33 (1976) 15
Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App. 4th
554, 565 13
People v. Perez (2018) 4 Cal.5th 421, 439 14
Peracchi v. Superior Court, 30 Cal.4th 1248 14
Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal. App.
4th 644, 653 8

Rochlis v. Walt Disney Co. (1993) 19 Cal. App. 4th 201, 219 13
Santa Ana Unified School Dist. v. Orange County Develop. Agency (2001) 90 Cal.
App. 4th 404, 411 13
Turner v. Anheuser–Busch, Inc. (1994) 7 Cal. 4th 1238 13
Statutes
CCP § 170.6(a)(1) 14
Code of Civil Procedure § 437c(c) 8
Rules
California Rules of Court rule 2.956(b)(3) 16
Constitutional Provisions
California Constitution, Article I, Section 7 15

PETITION FOR WRIT OF MANDAMUS

Petitioner EUN JUNG LIM petitions this Court for a writ of mandate or
other appropriate relief, directing the Orange County Superior Court to vacate
its Order denying Petitioner’s motion for summary judgment; and to enter a
different order granting said motion. The order denying Petitioner’s motion for
summary judgment was entered with a retired judge, which is sufficient reason
to vacate the decisions.

PRAYER

WHEREFORE, Petitioner prays that a writ of mandate issue from this
Court commanding the Orange County Superior Court to vacate its Order
denying Petitioner’s motion for summary judgment, and to make a new and
different order granting the motion for summary judgment, and for such other
relieve 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 12th day of September, 2022 at Orange County, California.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This case concerns the denial of Petitioner’s Motion for Summary
Judgment. Petitioner challenges the Trial Court’s decision on the grounds that
Petitioner is entitled to a favorable judgment on the motion, as a matter of law,
and that Petitioner has met the burden of proof to justify summary judgment;
Respondent has failed to satisfy the Court why summary judgment should not
be entered against them; the decision was entered by a retired judge; and
Petitioner was denied the right to court reporter services.
It follows; there are significant legal grounds, extraordinary facts, and
circumstances which justify this court to quash the Trial Court’s decision
denying Petitioner’s motion for summary judgment.
II. STATEMENT OF FACTS

The incidence giving rise to this action began when Petitioner’s mother had
been admitted at the First Respondent’s facility. On January 25, 2020, Petitioner
went to visit her mother. As Petitioner was checking in at the ER at the First
Respondent’s facility, the Second Respondent stole Petitioner’s phone from the ER
lobby and pushed the Petitioner until Petitioner fell.
Consequently, the police officers arrived and took a police report of the
incidence. Interestingly, the Second Respondent gave false information that

Petitioner was the one who punched his face. Accordingly, Petitioner was charged
and a case was filed against her. During the pendency of the said case, the Irvine
Police Department refused to give Petitioner a copy of the Police Report. It was
only when the case was dismissed when the Irvine Police Department gave the
Petitioner the Report.
The said case was dismissed with favorable disposition on May 2021. After
the dismissal of the case, the Petitioner got the Report. It is also worth noting that
during the trial of the said case, the detective, the attorneys of the hospital, and the
head of security personnel at the hospital looked at the hospital camera footage that
recorded the events of January 25, 2020. The Petitioner tried to subpoena the
hospital for the said footage. However, Petitioner used the wrong Subpoena.
Accordingly, the hospital’s attorney filed a Motion to Strike the said Subpoena on
the ground that it violated HIPPA laws. On or about December 2020, the Court
granted the Respondent’s Motion to Strike the Subpoena. The Petitioner therefore
never got an opportunity to present pertinent evidence of what really happened on
the incident.
Unfortunately, Petitioner’s mother died during the pendency of the case
against Petitioner. Further, Petitioner has been subjected to emotional harm and
distress pursuant to the malicious prosecution and the acts and/or inactions of the
Respondents.

On or about September 23, 2021, the Petitioner conducted a Public Records
request. After the said request, the Petitioner realized that Michele Hinig, a former
detective working on Petitioner’s case, maliciously made a declaration and warrant
for the Petitioner’s arrest by filing a false police report. The said declaration
warrant for Petitioner’s arrest contained notable irregularities and deficiencies.
Petitioner filed an action against the Respondents on or about January 25,
2022. (Evidence A, pg. 3). In the Complaint, Petitioner alleged that Respondents
were blameworthy for negligence, malicious prosecution, and intentional infliction
of emotional distress. Summons was also served on the Respondent on Feb 2,
2022. The Respondent had 30 days to respond according to the law.
On or about March 8, 2022, Respondent Hoag Memorial Hospital
Presbyterian filed an Answer to Petitioner’s Complaint. (Evidence B, pg. 22). In
the Answer, Respondent denied the allegations in Petitioner’s Complaint. The
Respondent also raised Affirmative Defenses to each of Petitioner’s cause of
action. Petitioner therefore files this Motion for Summary Judgment. It is worth
noting that Respondent filed an incorrect proof of service by email. Specifically,
Petitioner’s email is incorrect in the said proof of service. Petitioner then filed a
Motion to Strike Respondent’s Answer. (Evidence F, pg. 49)
Petitioner filed a Motion for Summary Judgment on or about March 16,
2022. The Trial Court set the hearing for the motion to August 1, 2022.

Consequently, the Respondent filed an Opposition to the said motion. Petitioner
then filed a Response to the Declaration of Jo Lynn Valoff and Scott Runnel in
support of the opposition to Petitioner’s motion for summary judgment (Evidence
H, pg. 71).
On or about July 25, 2022, the Petitioner requested for a Court Reporter by
filing “Request for Court Reporter by Party with Fee Waiver Filed”, for the
Summary Judgment hearing scheduled for August 1, 2022. The court had made
previous fee waivers in the case such as on February 7, 2022, and January 25,
2022.
On August 1 st , the Court continued the hearing date for the motion to August
22, 2022. Consequently, the hearing date was continued to August 24 th , and
subsequently to September 7, 2022. (Evidence D, pg. 33).
The Judge appointed for the August 22, 2022 hearing of Petitioner’s motion
for summary judgment was a retired judge.
Consequently, the Court entered a Tentative Order dismissing the
Petitioner’s motion, which order was upheld by the court. (Evidence C, pg. 31).
Petitioner filed a Motion for Reconsideration of the Tentative Order. (Evidence
G, pg. 58)
The Court upheld the decision denying Petitioner’s motion for summary
judgment.

21
ARGUMENTS

I. PETITIONER IS ENTITLED TO SUMMARY JUDGMENT AS
A MATTER OF LAW
Petitioner has met the burden of proof to justify summary judgment.
Courts will grant a Motion for Summary judgment if the moving party is entitled to
a judgment as a matter of law. See Code of Civil Procedure § 437c(c); see also
Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847.
The court must grant a motion for summary judgment "if all the papers
submitted show" that "there is no triable issue as to any material fact". See Code
Civ. Proc., § 437c, subd. (c))–that is, there is no issue requiring a trial as to any
fact that is necessary under the pleadings and, ultimately, the law. See Riverside
County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal. App. 4th 644,
653; Kelly v. First Astri Corp. (1999) 72 Cal. App. 4th 462, 470)–and that the
"moving party is entitled to a judgment as a matter of law" Code Civ. Proc., §
437c, subd. (c).
“A triable issue of material fact exists if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof. Thus, a
party cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence raising a

triable issue of fact.” Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011)
199 Cal.App.4th 1132, 1144-1145.
First, Petitioner asserts that the Motion for Summary Judgment was filed
timely, and therefore Petitioner is entitled to a judgment as a matter of law. The
Respondent replied to the Petitioner’s Complaint past the 30 days’ time limit,
which reason entitles Petitioner to a Summary judgment. Notably, Petitioner
served Summons on the Respondent on Feb 2, 2022. The Respondent had 30 days
to respond according to the law. However, Respondent filed an answer on or about
March 8, 2022. Respondent’s conduct was a blatant violation of Rule 3.110(d),
which provides that 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.
Next, there is no issue of material fact in the case. Summary judgment is
properly granted where there are no triable issues of material fact and the moving
party is entitled to judgment as a matter of law. Code of Civil Procedure § 437c(c)
states in pertinent part that, “The motion for summary judgment shall be granted if
all the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
(Emphasis added). Accordingly, Petitioners moving for summary judgment bear
the burden of persuasion that each element of the cause of action in question has

been “proved,” and hence that there is no defense thereto. Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal. 4th 826, 850.
Where Petitioners are required to prove a matter at trial by a preponderance
of the evidence, they must, in order to raise a triable issue of fact on a summary
judgment motion, present evidence showing the matter to be more likely than not.
See Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 857. This means that
Petitioners who bear the burden of proof at trial by a preponderance of evidence
must produce evidence that would require a reasonable trier of fact to find any
underlying material fact more likely than not. “Otherwise, he would not be entitled
to judgment as a matter of law.” See Aguilar v. Atlantic Richfield Co., supra, 25
Cal. 4th at 851; LLP Mortg. v. Bizar (2005) 126 Cal.App. 4th 773, 776 (burden is
on Petitioner to persuade court there is no triable issue of material fact.) Petitioner
has met this burden in that she has produced more than enough factual evidence
that would require a reasonable trier of fact to find the underlying material facts
more likely than not.
In the instant action, Petitioner’s Complaint outlines how the Respondents
are liable for the allegations therein. In the first cause of action (Vicarious
liability), Petitioner has stated that the Second Respondent was working on the
premises of the First Respondent. Accordingly, under the doctrine of respondeat
superior, the First Respondent is liable for the actions and/or inactions of the

Second Respondent herein. The Second Respondent assaulted Petitioner by
pushing her until she fell, and stealing her phone. Further, the Second Respondent
gave false information to the Police, which led to the case against Petitioner, which
was dismissed.
On the second cause of action, Petitioner has stated how a legal duty of care
existed between Petitioner and the Second Respondent. The Second Respondent
had a duty to avoid committing any act that would harm Petitioner. The said
Respondent breached the duty when he pushed Petitioner until Petitioner fell, stole
Petitioner’s phone, and gave false report against Petitioner.
On the third cause of action, Petitioner has averred how the Second
Respondent made false allegations against the Petitioner. Notably, the Second
Respondent lied that the Petitioner punched him in the face. Instead, there was a
video recording from the hospital, which would provide the truth regarding what
really happened. The Irvine Police Department went ahead to prosecute the case
without considering the falsity in the Police Report.
Under the fourth cause of action, the Petitioner has averred how the Second
Respondent intentionally gave false information to the police, that the Petitioner
punched him in the face. Due to the false allegations, the Petitioner was charged
and was subjected to prosecution. The said Respondent did the said actions and/or
inactions without considering the effects such actions and/or inactions would have

on Petitioner.
Petitioner therefore maintains that there is no genuine issue of material fact
and that this Court should grant this Motion for Summary Judgment.
Petitioner also attached filed an Affidavit of Fee Schedule, at the time the
motion for summary judgment was filed. (Evidence E, Affidavit of Fee Schedule,
pg. 40).
Lastly, Respondent Herbert Conrad has not yet filed any response to
Petitioner’s Complaint, which further entitles Petitioner to summary judgment.
I. RESPONDENT HAS FAILED TO SATISFY THE COURT WHY
SUMMARY JUDGMENT SHOULD NOT BE ENTERED
AGAINST THEM
A party opposing the motion bears the burden of setting forth specific facts
showing a triable issue of material fact as to Petitioner’s claim or a defense thereto.
Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092. The
moving party bears the initial burden of production to make a prima facie showing
that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal. 4th at 850.
In moving for summary judgment, a "Petitioner . . . has met" his "burden of
showing that there is no defense to a cause of action if" he "has proved each
element of the cause of action entitling" him "to judgment on that cause of action.

Once the Petitioner . . . has met that burden, the burden shifts to the Respondent . .
. to show that a triable issue of one or more material facts exists as to that cause of
action or a defense thereto. The Respondent . . . may not rely upon the mere
allegations or denials" of his "pleadings to show that a triable issue of material fact
exists but, instead," must "set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action or a defense thereto." (Code Civ.
Proc., § 437c, subd. (o)(1).)
It is not Petitioner’s initial burden to disprove affirmative defenses and cross-
complaints asserted by Respondent. Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App 4th 454, 468; Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co.
(2009) 170 Cal.App. 4th 554, 565.
The opposing party may not rely upon allegations or denials in its pleadings.
Rather, it must “set forth the specific facts showing that a triable issue of material
fact exists.” Santa Ana Unified School Dist. v. Orange County Develop. Agency
(2001) 90 Cal. App. 4th 404, 411 (failure to present evidence of laches barred its
consideration as a defense at summary judgment hearing.)
The party opposing summary judgment must produce admissible evidence
raising a triable issue of fact. Claims and theories not supported by admissible
evidence do not raise a triable issue. Rochlis v. Walt Disney Co. (1993) 19 Cal.
App. 4th 201, 219, (disapproved on other grounds in Turner v. Anheuser–Busch,

Inc. (1994) 7 Cal. 4th 1238) (courts should not hesitate to summarily dispose of
meritless litigation based on nothing more than a “smoke and mirrors”
presentation); Lyons v. Security Pacific Nat’l Bank (1995) 40 Cal. App. 4th 1001,
1006 (party cannot oppose orally without separate statement or affidavits.)
Petitioner avers that she has met her burden by making a prima facie
showing that there are no triable issues of material fact. Notably, Petitioner has
stated, in clear terms, how the Respondents are liable for the causes of action in the
Complaint. Since Petitioner has met the burden the Respondent is now required to
meet its own burden of making a prima facie showing that there is a triable issue of
material fact.
Petitioner avers that the Complaint filed by Petitioner clearly alleges
sufficient facts to establish each and every required elements of all causes of action
contained therein. The answer filed by Respondent consists of nothing but
“boilerplate” affirmative defenses which fail to state facts sufficient to constitute
affirmative defenses.
III. THE DECISION WAS ENTERED BY A RETIRED JUDGE
According to CCP § 170.6(a)(1), 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.").
It is Petitioner’s averment that the presiding Judge, Shelia B. Fell must not
have presided over the summary judgment hearing. It is noteworthy that the Judge
retired in 2021 1 . That notwithstanding, the Judge went ahead to preside over the
hearing of the Petitioner’s motion for summary judgment, and in the course
thereof, was biased towards the Respondent’s side. The judge’s bias was exhibited
when the Judge allowed the Respondent’s frivolous conduct. Respondent has been
filing frivolous documents in a bid to further delay the determination of
Petitioner’s motion. The judge also failed to address the Respondent’s failure to
adhere to the 30-day time limit set for responsive pleadings. Further, Petitioner has
not received any notice that another judge would be handling the case.
Petitioner challenged the retired Judge’s authority to preside over the
hearing of Petitioner’s motion for summary judgment by filing a Motion to Recuse
the Judge. In the motion, Petitioner requested for an elected Judge to preside over
the case.
In light of the foregoing, the Judge’s aforesaid conduct amounts to prejudice
against Petitioner, which is against the interest of justice.

1 https://trellis.law/judge/sheila.b.fell

IV. PETITIONER WAS DENIED THE RIGHT TO COURT
REPORTER SERVICES
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).
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.
An official court reporter, or other valid means to create an official verbatim
record for purposes of appeal, must generally be made available to in forma
pauperis litigants upon request. See Jameson v. Desta, 5 Cal.5th 594 (Cal. 2018).
In Jameson v. Desta, the Supreme Court of California held that as applied to in
forma pauperis litigants who are entitled to a waiver of official court reporter fees,
the San Diego Superior Court’s general policy of not providing official court
reporters in most civil trials while permitting privately retained court reporters for
parties who can afford to pay for such reporters was invalid.

Further, according to California Rules of Court rule 2.956(b)(3), a party who
has received a fee waiver pursuant to California Rules of Court rule 3.55 may
request an official court reporter at least 10 calendar days prior to a trial or
evidentiary hearing by submitting mandatory court form L-0790.
In the instant action, Petitioner cannot afford the price of a court reporter.
For this reason, on or about July 25, 2022, the Petitioner requested for a Court
Reporter by filing “Request for Court Reporter by Party with Fee Waiver Filed”,
for the Summary Judgment hearing scheduled for August 1, 2022. The court had
made previous fee waivers in the case such as on February 7, 2022, and January
25, 2022. Besides, the Petitioner never waived her right to a court reporter.
At the day of the hearing, the clerk informed Petitioner that there was no
court reporter. The clerk further told the Petitioner that on Mondays, the Court
usually does not have court reporters. Petitioner then asked for continuance until
such a time when a court reporter would be available. It is Petitioner’s averment
that the Judge should have only moved the hearing to a different date other than
Monday, to such a time when a court reporter would be available. Besides, there
would be no reasonable objection from the Respondent if the hearing would be
moved to a date when the court reporter would be available.
However, the Judge told Petitioner that she would not get the court reporter
for free. The Judge further insinuated that Petitioner would have to pay the

Respondent’s attorney fees, and pay the court reporter’s fees if she continued the
case. The Judge then continued the hearing to August 22, 2022, which is a
Monday, when there are no court reporters in Court.
The Judge’s denial of Petitioner’s request for a court reported violated
Petitioner’s due process rights since Petitioner the lack of a court reporter means
that Petitioner has no official record for the evidentiary hearing, which record
would have been used for appeal.

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 for summary judgment, and for such other relieve as may be just.

DATED: _________________

Respectfully Submitted,

_______________________________
EUN JUNG LIM
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 3452 words, including footnotes. 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,

____________________
EUN JUNG LIM
Petitioner, pro se

CERTIFICATE OF SERVICE

I hereby certify that, on [ENTER DATE], 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,

____________________
EUN JUNG LIM
Petitioner, pro se

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