| IN THE SUPREME COURT OF STATE OF CALIFORNIA
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| 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]
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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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CERTIFICATE OF INTERESTED PERSONS
Interested entities or persons required to be listed under Rule 8.208 are as follows:
- The California Board of Registered Nursing
- Loretta Melby
- Gillian Friedman
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS. 2
PETITION FOR WRIT OF MANDAMUS. 5
MEMORANDUM OF POINTS AND AUTHORITIES. 6
- The Standard of Review.. 7
- Petitioner does not meet the threshold under Cal. Code Civ. Proc. § 391(b) 8
RESPONDENT FILED A LATE RESPONSE: PETITIONER’S MOTION IS THEREFORE DEEMED ADMITTED.. 12
TABLE OF AUTHORITIES
Cases
Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119)……………… 12
Camerado Ins. Agency, Inc. v. Superior Court, 12 Cal.App.4th 838, 842 (Cal. Ct. App. 1993)……………………………………………………………………………………………………… 11
Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961)…………………………. 9
Critzer v. Enos, 187 Cal.App.4th 1242, 115 Cal. Rptr. 3d 203 (Cal. Ct. App. 2010) 12
Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378………………………………………………………………………………… 10
Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003).. 12
Statutes
Cal. Code Civ. Proc. § 391(b)………………………………………………………………….. 9
Cal. Code Civ. Proc. § 437 C (C)……………………………………………………………. 12
Cal. Unemp. Ins. Code § 1085……………………………………………………………….. 15
Rules
Cal. Rules of Court, rule 8.54(a)(3)…………………………………………………………. 14
Cal. Rules of Court, rule 8.54(c)…………………………………………………………….. 14
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, and denying Petitioner’s Motion for Reconsideration (Exhibit- Minute Order 08/09/2023). 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 denying Petitioner’s Motion for Reconsideration. Petitioner requests this Court 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, placing Petitioner in the vexatious litigants list, and denying Petitioner’s Motion for Reconsideration. On 12/09/2023, the Court held that Petitioner is a vexatious litigant, and put Petitioner in the vexatious litigant statute (Exhibit A- Minute Order December 9th, 2022).
Petitioner filed a Motion for Reconsideration on 12/20/2022 (Exhibit B- Minute for Reconsideration) and a Motion for Sanctions on 02/02/2023.
Next Kaiser filed an opposition July 26, 2023, which was outside the timeline to file an opposition (Exhibit C- Kaiser’s Opposition to Motion for Reconsideration).
Petitioner then filed a Declaration in Response to Respondent’s Opposition to the Motion for Reconsideration (Exhibit D- Declaration in Response to Defendant’s Opposition to Motion for Reconsideration).
On 08/09/2023, the Court held a hearing on Motion for Sanctions and a hearing on Motion for Reconsideration. The Court denied Petitioner’s Motions, and upheld the Order declaring Petitioner a Vexatious Litigant (Exhibit E- Minute Order August 9th, 2023).
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). Petitioner also challenges the decision because the Respondent filed a late response to Petitioner’s motion for reconsideration.
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, and denying Petitioner’s motion for reconsideration.
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:
- 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;
- 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
- 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 was Respondents 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, Respondent’s attorney attempts to cloud Respondent’s liability, by ensuring that Petitioner appears as frivolous as possible. As Respondent’s attorney, 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.
RESPONDENT FILED A LATE RESPONSE: PETITIONER’S MOTION IS THEREFORE DEEMED ADMITTED
According to Cal. Rules of Court, rule 8.54(a)(3), the Respondent then has 15 days to serve and file opposition to a motion. Besides, “[a] failure to oppose a motion may be deemed a consent to the granting of the motion.” See Cal. Rules of Court, rule 8.54(c).
First, Petitioner submitted her motion for reconsideration to the court on December 19th, 2022, which was filed 12/20/2020. According to Rule 8.54(a)(3), Respondent was to file a response to Petitioner’s motion on or before Monday, 4 January 2021.
Next Kaiser filed an opposition July 26, 2023, which was outside the timeline to file an opposition. Untimely responses and/or oppositions are invalid. For this reason, the facts and arguments raised in Petitioner’s Motion for Reconsideration were deemed admitted, and the Motion should have been granted.
On 08/03/2023, Petitioner filed a declaration in response to Kaiser’s opposition, with exhibits, which declaration was filed in accordance with the CA court rule to file reply within 15 days of opposition filed.
Petitioner asserts that the motion for reconsideration and the declaration sufficiently demonstrated the circumstances in which Petitioner was placed on vexatious litigants list. Petitioner further demonstrated the pattern of lies and misrepresentation of facts that Kaiser has been engaging in from the beginning of the case.
For instance, all efforts at discovery request for records as pertains to Petitioner’s employment with Kaiser, were blocked by the judges. Petitioner then made a request to Kaiser pursuant to Cal. Unemp. Ins. Code § 1085, for production of records, which resulted in production of fraudulent records. These records were then presented as exhibits attached to plaintiff’s declaration (in response to Kaisers opposition to motion for reconsideration), to which Judge Small denied.
On 08/09/2023, Judge Small issued the Minute Order denying Petitioner’s motion for Reconsideration. The Judge stated in open court, ‘this case is over!!”
The foregoing shows how the Judge’s bias and/or error denied Petitioner’s Motion for Reconsideration, yet the Respondent failed to file a timely response. Respondent’s action was in direct contravention of well-settled law. Petitioner therefore finds fault with Judge Small, when he failed to apply the law correctly.
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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