REBUTTALS TO BRNS ASSERTIONS

In making the September 19, 2022 judgment, Judge Kleifield disregarded Code of Civil Procedure § 437(c), which states in pertinent part that, “The motion for summary judgment shall [only] 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). Also, the Judge disregarded the fact that Defendant failed to meet her burden to show that, as a matter of law, Plaintiff could not establish one or more of the elements of each challenged cause of action. Cal. Code Civ. Pro. § 437c(o)(l), (p)(2); Aguilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

Next, Plaintiff has not met any of the factors identified in Cal. Code Civ. Proc. § 391(b), which may be considered in determining whether a she is a vexatious litigant. Plaintiff’s conduct in the prosecution of the case is nowhere near vexatious and/or frivolous. Notably, in the past seven years, she has never commenced any actions, that have been determined against her. She has also never delayed any action for at least two years.

Next, Plaintiff asserts that the motion for sanctions was necessary to punish the BRN for abuse of the discovery process. The purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture, and the avoidance of the trial on the merits, but to prevent abuse of the discovery process and correct the problem presented. See California Discovery Citations (TRG 2019) 1:6; citing Parker v. Wolters Kluwer United States, Inc., 149 Cal.App.4th 285, 57 Cal. Rptr. 3d 18 (Cal. Ct. App. 2007)

The accusation stated that Plaintiff was subject to disciplinary action for failing to comply with the Section 820 Order compelling her to a mental examination. (EXHIBIT 9- BRN’S order compelling mental exam 07/14/2022; EXHIBIT 10- Response to Rinaldi’s Order to Respondent; EXHIBIT 17- Gillian’s Statement to Respondent; EXHIBIT 15b- Response to Rinaldi’s Order to Respondent; EXHIBIT 15c- Rinaldi’s Additional Order to Respondent; EXHIBIT 18- Default decision and Order; EXHIBIT 18a- Disciplinary Action Records; EXHIBIT 18b- Official Revocation of License; EXHIBIT 18c- Subject Statement and Dispute). accusation was based on false information that was sent to the BRN from Plaintiff’s former employer, regarding the incidence on August 18, 2020, which incidence forms the basis of the instant case.

The correct version of facts for the August 28, 2020, incidence is that she was engaged in a casual conversation with Mr. Edwards, a previous co-worker, when she mentioned that she had been harassed by two males within the last year at another job she held before. At that time, Plaintiff considered Mr. Edwards to be a friend since they often worked in the same shift as nurses. It is after this incidence that Mr. Edwards started making negative remarks about her to the hospital’s patients and staff, in an effort to discredit her and make her appear as incompetent and incapable of performing her duties as a nurse. Plaintiff sent Sarah Poetter, her nursing manager, an email detailing her bullying. Plaintiff then met with the HR, where she discussed her concerns regarding Mr. Edwards.

The staff and management of Kaiser then started making the false allegations against Plaintiff, that she is not mentally capable of fulfilling her duties.

Sarah Poetter then sent the BRN the false report that initiated the BRN’s oppression of Plaintiff.

Plaintiff emphasizes that Sarah Poetter received all of plaintiff’s clearance notes, which showed that there was nothing wrong with Plaintiff. (EXHIBIT 3- Acacia Mental Health director Kerri Cole’s Request for Authorization to Release Mental Health Records to BRN; EXHIBIT 4- Acacia Mental Health follow-up Request for Authorization to Release Mental Health Records to BRN; EXHIBIT 5- Acacia Mental Health Communication regarding authorization for release of mental health records to BRN; EXHIBIT 6- Plaintiff’s authorization for Acacia Mental Health to release mental health records to BRN; EXHIBIT 7- Acacia mental health director confirms all mental health clearance notes requested by Kaiser were faxed to Kaiser; EXHIBIT 8- Acacia mental health director confirms all mental health records requested by Kaiser were faxed to BRN; EXHIBIT 13- Exhibit 13- BRN Psychiatrist- August 2022; EXHIBIT 13a- Psychiatrist Appointment set for September 8, 2022). The psychologist’s notes showed clearly that Plaintiff’s fear of black magic was valid and was based on her cultural/religious belief, harassment, abuse at work, and her unexplainable car accident. The psychologist further stated that Plaintiff’s thought process was within the normal limits, and that her reaction was normal based on the circumstances that she was subjected to.

Plaintiff maintains that the BRN’s resort to subjecting her to the examination was an unduly intrusive means of determining her mental condition.  First, Kaiser’s fitness for duty policy provides that there must be evidence for the inability to perform the requirements of the job. If there is no such evidence, there is no basis for a fitness for duty examination. Besides, the BRN withheld a copy of the report that was made against Plaintiff, despite Plaintiff’s incessant efforts to get access to the report. (EXHIBIT 2a- Email Request to Cristina for Copy of Report sent by Sarah Poetter that was provided to Review During interview; EXHIBIT 2b- Christina Vazquez Subpoena- 07/15/21; EXHIBIT 2e- BRN Authorization for release of Mental Health Records; EXHIBIT 2f- Authorization for Release (Annexture)).

The BRN opposed Plaintiff’s subpoena requests, yet the requests sought disclosure of pertinent information that would establish facts in support of Plaintiff’s position. (EXHIBIT 2c- Christina Vazquez Objection to Subpoena Request- 07/15/21; EXHIBIT 2d- Plaintiff’s response to Christina Vazquez’s Objection to Subpoena Request; EXHIBIT 16- Gillian’s Objection to Deposition Subpoena; EXHIBIT 17- Gillian and Armando Objections)

Next, as Plaintiff already stated, the BRN had already interviewed her, and accessed her medical records, but never found any issue with Plaintiff’s record. Nowhere in Respondent’s history of nursing was there any record of bad patient care or any medical errors. Besides, Plaintiff attests that the Board made no attempt to ascertain the veracity of the allegations made against her. Instead, the Board’s first step was to order Plaintiff to a Section 820 examination. (EXHIBIT 9- BRN’S order compelling mental exam 07/14/2022; EXHIBIT 10- Response to Rinaldi’s Order to Respondent; EXHIBIT 11- Proof of Service that Opposition to Order compelling mental exam was served to the AG and received; EXHIBIT 12- Kevin Narine- BRN Exam Notice; EXHIBIT 12a- Thomas Rinaldi- BRN Exam Notice; EXHIBIT 12b- Response to Thomas Rinaldi Exam Notice; EXHIBIT 12c- Kevin Narine Exam Notice- 7/27/22).

Section 820 examinations “are permissible if there is a showing of good cause.” See Kees v. Medical Board, 7 Cal. App. 4th 1801 (Cal. Ct. App. 1992) It is Plaintiff’s assertion that Loretta made the accusation without ascertaining the presence of good cause to make said accusation. At least, Loretta should have examined the veracity of the false report that was sent to the BRN.

Next, one should only be subjected to a mental examination 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). In this case, the BRN failed to consider other means of ascertaining Plaintiff’s mental capacity. Nowhere in Plaintiff’s history of nursing was there any record of bad patient care or any medical errors. It therefore beats logic why Gillian kept insisting that Plaintiff subjects to a mental examination, yet all records show that she was not mentally incompetent at all.

However, section 128.5 does not authorize sanctions against a nonparty. (Rabbit v. Vincente (1987) 195 Cal.App.3d 170, 174; Capotosto v. Collins (1991) 235 Cal. App. 3d 1439, 1442, 1 Cal. Rptr. 2d 470, 471.)

As the Board is a nonparty to this action, it cannot be subject to sanctions under section 128.5.

The Court should thus dismiss the Motion on this basis alone without further consideration of the merits.

The foregoing provision clearly states the obligation of a person possessing discoverable information to be subpoenaed for deposition, if they are the entities that can establish facts pertinent to the case. This position therefore creates a liability for a party who attempts to evade deposition by claiming they are a non-party.

(1) the Board’s Executive Officer Loretta Melby filed a baseless Accusation against Plaintiff;

Plaintiff has sufficiently demonstrated how the Board made frivolous objections to Plaintiff’s subpoenas in an attempt to stifle Plaintiff’s intention to have the truth laid bare in Court.

Next, Plaintiff has demonstrated how Loretta Melby made a baseless accusation against Plaintiff. Loretta ignored pertinent records in the BRN’s possession, which show that Plaintiff has no mental illness, contrary to the accusations made against her. Notably, Loretta Melby has access to Plaintiff’s RN case file (21-16709-rn) used by Cristina Vazquez, the BRN investigator, to request the psychologist notes from Acacia. Those notes explain from a psychologist standpoint that Plaintiff’s reaction was valid and there is no mental issues precluding Plaintiff from being able to work.

Notably, Plaintiff sent her supervisor, Sarah Poetter an email detailing her bullying. Plaintiff then met with the HR, where she discussed her concerns regarding Mr. Edwards. The staff and management of Kaiser then started making the false allegations against Plaintiff, that she is not mentally capable of fulfilling her duties.  

Further, on or about July 2021, the BRN interviewed Plaintiff. BRN then received Plaintiff’s complete medical record on August 3, 2021. Upon receiving Plaintiff’s records, the Board found no issue. Nowhere in Plaintiff’s history of nursing was there any record of bad patient care or any medical errors.

Besides, it is worth noting that Plaintiff has a recommendation letter sent by Julie Bonsack, Plaintiff’s travel nurse recruiter on July 22, 2022. In the letter, Julie stated that Plaintiff received a good recommendation from supervisor Jennifer Ty. Julie further quoted Jennifer Ty, who stated expressed their thrill to have Plaintiff work with them, and that they would love to keep or have her come back as the need arises.

Plaintiff also received a letter on July 25, 2022 from Cheyenne Haggard, her recruiter. In the letter, Cheyenne acknowledged that Plaintiff had worked with her as a travel nurse at Clovis Community Medical Center, Clovis, CA. She further noted that Plaintiff had received good recommendations from her supervisor Jennifer Tyo, Laura Benesch at Palmdale Regional, and Natalie P, a Charge RN at Clovis Community Medical Center. The said individuals were excited to work with Plaintiff.

On March 11, 2021, Jennifer Tyo, Plaintiff’s supervisor at Providence Little Company of Mary San Pedro, noted that Plaintiff has been able to maintain a composed demeanor, even working in stressful situations. Also, on March 21, 2023, Plaintiff received a verification of employment from Danelle Manderfeld. In the letter, Danelle stated that Plaintiff met the requirements for her job and qualified for rehire with Atlas Medstaff.

Further, on April 27, 2022, Tina Griffith wrote a recommendation letter, where she noted that Plaintiff was a self-starter, reliable, and excelled under pressure.

Clearly, the Board did not probe the veracity of the report that was presented to the Board by Sarah Poetter. The Board also failed to probe how the employees at Kaiser falsely accused Plaintiff, and subjected her to unfair treatment.

During the meeting on November 6, 2020, Plaintiff received a suspension letter indicating that Plaintiff was placed on an unpaid investigatory suspension to pave the way for an investigation against me. There was no mention of the dismissal on August 28, 2020, or any form of acknowledgment of the clearance note submitted on September 4, 2020. Much to Plaintiff’s dismay, she was instead placed on suspension for a Level Two medication error for improper disposal of a medication vial. As a nurse with over ten years’ experience, Plaintiff asserts that there was no actual medication error. This is a clear act of perjury on Kaiser and an act of malicious intent to cover up the illegal suspension on August 28, 2020. Plaintiff knows this because a level 2 medication error standardly does not carry a suspension disciplinary action.

Further, in a subsequent meeting on November 10^th, there was no mention of the August 28, 2020, incident. During that November 10^th meeting, the management focused on getting Plaintiff to sign the suspension letter, or ultimately face escalating disciplinary actions that would lead to immediate termination. Knowing that their actions were wrong both legally and morally, Plaintiff continued to refuse to sign any suspension letters, as it was evident this was a sly cover-up for the verbal dismissal on August 28, 2020. Plaintiff’s suspension letter was then increased to level 3. (Despite being pressured, bullied, intimidated and being the recipient of intense fear tactics to sign the suspension letter during the November 10^th meeting, Plaintiff still refused. Due to this, the management had targeted and effectively terminated Plaintiff’s employment as of November 10, 2020.

On or about September 9, 2020, an EEOC investigator, Lourdes Keppel, contacted Plaintiff and advised her that she was investigating her complaint and would reach out to her shortly. In the meantime, Plaintiff continued to receive phone calls from a few of her co- workers advising her that Xavier Edwards was continuing to spread rumors about her, claiming that she was psychotic and that she was mentally unstable.

On January 29, 2021, Plaintiff was denied her accommodation request. On February 11, 2021, a Clarification Note was sent to the HR. The note stated that Plaintiff had no specific functional limitations that would preclude her from performing her nursing duties. The foregoing notwithstanding, the HR still maintained that they would engage a third-party healthcare to perform a medical assessment on Plaintiff. The HR further stated that Plaintiff would further remain on unpaid medical leave.

“The only guideline set forth in section 820 is simply “[w]henever it appears that . . . the licentiate’s ability to practice is impaired due to mental illness…”” Alexander D. v. State Bd. of Dental Examiners, 231 Cal.App.3d 92, 98 (Cal. Ct. App. 1991).

(Code Civ. Proc., § 2017.010.)

The “existence of a pending action is a condition precedent to application of the [Civil Discovery] Act. (Dep’t of Fair Emp. & Hous. v. Superior Ct. (1990) 225 Cal. App. 3d 728, 730.).

Because there is no triable pending action here, Plaintiff is not entitled to discovery and cannot issue subpoenas, or have them enforced, to obtain discovery. It logically follows that under these circumstances, Plaintiff is not entitled to discovery sanctions under the Civil Discovery Act.

It is Plaintiff’s assertion that the fact that a matter is scheduled on the Court docket is sufficient to show that the case is not closed.