MOTION TO DISMISS

Esther Tendo Atam

13621 Arcturus Ave.

Gardena, CA 90249

Natashchan1@yahoo.com

Plaintiff in Pro Per

.

Plaintiff, ESTHER ATAM, hereby declares as follows:

1. Plaintiff makes this Statement in objection to Judge Small hearing the Motion to Dismiss. This statement is premised on the fact that Judge Small is disqualified and per Civ. Code 170.4, he can neither vacate any hearings, nor can he hear the motion to dismiss scheduled for May 9, 2023.
2. According to Cal. Code Civ. Proc. § 170.1(a)(6)(iii), 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.” The following facts show the partiality of Judge Small, which justifies his dismissal:

1. Judge Small has allowed the abuse of the discovery process, to my detriment
2. Kaiser failed to respond to Plaintiff’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 Plaintiff’s contention that staying the discovery process is unfair to Plaintiff since the information requested in the discovery would provide pertinent facts and/or evidence, which would establish Plaintiff’s claims against the Defendants. Also, failure of Judge Lu to find Defendants in abuse of the discovery process shows how Judge Lu is biased.
3. On March 17, 2023, Judge Small vacated all hearings in the case , including the May 9^th hearing to dismiss Plaintiff’s complaint, and said action automatically voided the court order issued on February 16^th, 2023, to stay discovery until after the hearing on the Motion to Dismiss on May 9^th.
4. The motion to dismiss plaintiff’s complaint was then placed off docket with no reset date, from March 17^th 2023 to March 28^th, 2023.
5. May 9^th then became available and plaintiff reserved May 9^th for a hearing on sanctions.
6. Plaintiff then filed a motion for sanctions in department 26, which was accepted by the court and was docketed for May 9^th, 2023.
7. Accordingly, plaintiff sent out second Requests for Admission on March 28, 2023. The request for admissions was delivered March 31, 2023. Therefore, a response is due by May 1, 2023.
8. Next, Plaintiff mailed out interrogatories to Defendants on March 28, 2023. The interrogatories were delivered March 31, 2023. A response is therefore due by May 1, 2023. Plaintiff also reissued subpoenas to defendants to the hearing for sanctions on docket for May 9^th, 2023.
9. Finally, Plaintiff 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.
10. The Court unjustly removed upcoming hearings
11. Judge Small issued a Minute Order on March 17, 2023, which has the effect of putting off all future hearings off-calendar. 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. It is notable that Plaintiff had already made filings with respect to each hearing. Plaintiff’s good faith efforts would therefore go to the drain in the event this Court upholds its decision to strike off the hearings.

• Judge Small is colluding with Judge Elaine Lu

12. On March 17, 2023, Judge Small vacated all scheduled pending hearings in this case. 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 Plaintiff had subpoenaed the psychologist and the other SCPMG Defendants. It follows; with no more pending hearings in this case after March 28, 2023, the case was closed.
13. Judge Elaine Lu colludes with Judge Michael Small at Department 57, to further curtail Plaintiff’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 Kasier. 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 Plaintiff 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.
14. Judge Small fails to acknowledge that Plaintiff’s previous attorneys engaged in fraud
15. Under California law, a plaintiff seeking punitive damages must prove “that the defendant has been guilty of oppression, fraud, or malice. See 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 defendant’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).
16. False Representation, Concealment, Deceit
17. A false representation is a misrepresentation of material fact upon which plaintiffs justifiably relied. See Restatement Second of Torts, § 402B, coms. f, g, and j.
18. Plaintiff 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 Defendant in the case, disregarding Plaintiff’s attached W2s and wage statements that named the correct Defendant: Southern California Permanente Medical Group (SCPMG).
19. Plaintiff was still confused as to why Gary put KFH in the complaint. Plaintiff 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, Plaintiff substituted the attorney by filing form MC-050 (Substitution of Attorney-Civil) on or about December 22, 2021. Notably, Gary wrote an email to Plaintiff indicating that his office would send Plaintiff a substitution of attorney form, which would require two signatures from Plaintiff. Consequently, Gary sent over the substitution of attorney Form MC-050, which Plaintiff duly signed.
20. However, on February 15, 2022, Gary Carlin filed Form MC-050 “Substitution of Attorney” form. The form had a forged signature of Plaintiff. Plaintiff also noticed that Gary had forged the party’s Retainer Agreement. Notably, the Retainer Agreement presented by Gary had a forged handwriting of Plaintiff . The forged Agreement stated that Plaintiff had hired Gary for “Employment/Labor Law Issues Re Kaiser”. Not only was this not Plaintiff’s handwriting, it contradicted what Plaintiff initially stated as the correct name for the Defendant. 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.
21. After Plaintiff 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 Plaintiff hired Hershey to prosecute Plaintiff’s action arising out of Plaintiff’s employment with SCPMG.
22. On March 28, 2022, Hershey filed a Case Management Statement, where he identified the Defendant as SCPMG. Hershey was later relieved as Plaintiff’s counsel vide a Court Order issued granting his motion to be relieved as counsel. In the motion, Hershey argued that he withdrew because Plaintiff had sent threats to the Defendants. Hershey’s averments were not true. The attorney was relived after Plaintiff expressed her concerns on effective representation.
23. It is also notable that long after Gary’s representation of Plaintiff had been terminated, Gary still went ahead to file a Case Management Statement for Plaintiff on September 14, 2022, without Plaintiff’s knowledge or consent. Plaintiff 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 Defendant’s Counsel notice of the accidental filing. Gary never gave such a notice to Plaintiff. This action by Gary further shows their sinister motive to interfere with Plaintiff’s case and thwart her access to justice.
24. Knowledge of Falsity
25. 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. “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.
26. The Attorneys were aware of the error in the naming of the Defendant. As stated above, in her communication with Gary, Plaintiff had attached W2s and wage statements that named the correct Defendant. Also, on December 21, 2021, Gary Carlin wrote an email to Plaintiff titled “TAM V. SCPMG”. In the email, Gari further referred to the Defendant expressly as SCPMG.
27. Further, Plaintiff confronted Gary Carlin via email on October 28, 2022, with the fact that Gary had entered the wrong name of the Defendant and that he had forged Plaintiff’s handwriting in the Retainer Agreement. Gary responded to Plaintiff’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.
28. 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 Defendant’s name in the caption. He only excused himself for mistakenly filing Plaintiff’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.
29. This Court should note that Plaintiff’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.
30. Intent to Defraud (to Induce Reliance)
31. 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.
32. Attorney Carlin never bothered to correct his significant error of naming the incorrect entity. Gary Carlin further failed to inform Plaintiff that Defendant’s counsel, Lisa Magorien, had informed him of the error. In fact, Plaintiff first learned that the incorrect Defendant was named in the complaint, when Plaintiff opposed Defendant’s motion for summary judgment on or about May 9, 2022.
33. Justifiable Reliance
34. 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 plaintiff acted in reliance on the misrepresentation but that he was justified in his reliance.
35. While retaining both Gary and Hershey Brennan, Plaintiff 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 Plaintiff relied on the representations of the attorneys, to her detriment.
36. Resulting Damage
37. A “complete causal relationship” between the fraud or deceit and the plaintiff’s damages is required. Causation requires proof that the defendant’s conduct was a “‘substantial factor’ ” in bringing about the harm to the plaintiff.” See Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658].
38. Plaintiff asserts that she has suffered disastrous damages consequential and incidental to the fraud highlighted above. First, Plaintiff has suffered harassment, frustration, and emotional trauma. After terminating their representation of Plaintiff, Plaintiff’s Complaint would later be challenged by Defendant’s counsel, Lisa Magorien, on the ground of the improperly named Defendant. Notably, Lisa Magorien filed a Motion for Summary Judgment on April 21, 2022 alleging inter alia, that Plaintiff had named the wrong Defendant as party in the Complaint. Plaintiff only realized that there was an issue with the Defendant’s name when she received the Motion for Summary Judgment form Lisa Magorien. It follows; the attorneys colluded with the Defendant’s counsel and the judge to frustrate Plaintiff’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 Plaintiff’s struggles in Court, which would later end up with Plaintiff’s case being disposed and Plaintiff being termed a vexatious litigant.
39. The fraud has made it impossible for the Court to address the defamation made against Plaintiff by not only the Defendant, but also Defendant’s attorney, Lisa Magorien. Plaintiff maintains that Sarah Poetter, who was her supervisor, presented false and defamatory report about Plaintiff to the BRN. This report would form the basis of BRN’s unlawful investigation of Plaintiff and the subsequent revocation of her RN license. Lisa Magorien, on the other hand, presented defamatory and frivolous emails alleging that Plaintiff had made threats to Defendant’s employees.
40. Plaintiff’s reputation has also been dealt a heavy blow. The fraud discussed herein prevented Plaintiff from successfully prosecuting her case in the Court. For that reason, the Defendants could not be held liable for their actions and/or inactions against Plaintiff. Further, the BRN relied on defamatory averments from Defendant, which eventually led to Plaintiff’s RN license being revoked. Plaintiff cannot therefore earn income as a RN practitioner. All the foregoing, including placing Plaintiff on the vexatious list, has damaged Plaintiff’s reputation.
41. Another resulting damage on Plaintiff is that she has been denied her due process rights since the Court wants to dismiss Plaintiff’s case on procedural technicalities, without considering the merits thereof. Defendant’s counsel vehemently opposed every step Plaintiff took to amend the complaint and include the right Defendant’s name. Plaintiff 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.4^th 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, Plaintiff 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 Plaintiff, she has nowhere else to seek justice.
42. Plaintiff has also been declared a vexatious litigant to prevent her from making filings and present her case in pursuit of legal redress. Attorney for Defendant was aware Plaintiff was about to file a new Complaint and moved the court to make Plaintiff a vexatious litigant. Defendant’s counsel vehemently sought to maximize on the error in the Complaint, which as Plaintiff has already explained, is a result of her previous attorney’s fraud. It is notable that Plaintiff made motions to attempt to seek a correction of the issue, which include her opposition to Defendant’s Motion for Summary Judgment, and her Motion for Leave to File her Amended Complaint. Defendant’s counsel challenged these filings by claiming that they were frivolous and ultimately, she filed an ex parte motion to declare Plaintiff a vexatious litigant.
43. If Judge Small is not disqualified, Plaintiff’s due process right to a fair trial are at stake
44. 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).
45. Judge Kleifiled failed to protect Plaintiff from Defendants’ frivolous conduct
46. On March 28, 2022, Hershey filed a Case Management Statement, where he identified the Defendant as SCPMG. Hershey was later relieved as Plaintiff’s counsel vide a Court Order issued by Judge Stephen Kliefield, granting his motion to be relieved as counsel.
47. The foregoing shows that Judge Kleifield was aware that the Defendant was rightly identified as SCPMG. That fact notwithstanding, the Judge went ahead to deny Plaintiff leave to amend her Complaint, and went ahead to grant Hershey’s motion to be relieved as counsel.
48. Judge Stephen Kleifield colluded with Defendant, granted Defendant’s ‘prayers’ and declared Plaintiff vexatious. The Judge also granted Defendant’s Motion for Summary Judgment and dismissed Plaintiff’s judgment in an order delivered on September 19, 2022. A notice of Entry of Judgment was thereafter entered on September 21, 2022.
49. It should be noted that Plaintiff challenged the Judge’s decision, and sought to have the judge disqualified. Ultimately, as proof that some error had been done, Judge Stephen Kleifield recused himself from the case, and Judge Michael Small took up the case.
50. The Court fails to acknowledge that Lisa identified SCPMG as the party correctly sued
51. Interestingly, Lisa Magorien herself stated in her declaration on March 2022 that Plaintiff had filed the case against SCPMG. The Court failed to acknowledge this fact, and went ahead to side with Defendant in their incessant frivolous attempts to prevent Plaintiff from amending her complaint to reflect the correct party’s name.
52. Lisa unjustly put Plaintiff in the vexatious litigant list
53. Lisa sought to have Plaintiff 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 Plaintiff is a vexatious litigant. Plaintiff 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, Plaintiff 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 Plaintiff had ever brought in court against the Defendants. Plaintiff was suing the Defendants for the first time. Her Complaint and her subsequent attempts to correct the procedural issue are in no way meant to harass the Defendant.

1. The BRN moved to revoke Plaintiff’s license in the middle of a lawsuit
2. The BRN revoked Plaintiff’s license while this case was still pending. It is noteworthy that BRN opened an investigation on Plaintiff based on false allegations from Sarah Poetter. The BRN thereafter subjected Plaintiff to an unlawful Section 820 examination. After Plaintiff failed to acknowledge the legality of their actions, the BRN went ahead to revoke Plaintiff’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 Plaintiff, which allegations were used by the BRN to revoke Plaintiff’s license. This just shows how the BRN violated Plaintiff’s right to a fair hearing.
3. Plaintiff is being denied her right to a fair trial, when the Court seeks to dismiss the case on a procedural technicality.
4. As Plaintiff has already pointed out, the error in the naming of the Defendant is not attributed to Plaintiff, but to her former attorneys. Plaintiff is therefore suffering for a mistake that is not hers. As further evidence of this court’s curtailment of Plaintiff’s due process right to a fair trial, Plaintiff’s efforts to correct the procedural technicality have been challenged and opposed by the Defendant. The Court also appears to participate in the ongoing fraud, by permitting Defendant’s unjust challenge to Plaintiff’s good faith attempts to have the correct name of the Defendant in the Complaint.

The alleged vexatious litigant status will need to be addressed for continued litigation

46. The Minute order issued on 04/11/2023 by Hon. Michelle Williams Court clearly states that plaintiff’s status as a vexatious litigant will have to be addressed for continued litigation. Judge Small, on the other hand, states that Plaintiff was rightly declared a vexatious litigant.
47. The foregoing shows how Judge Small is determined to join Defendant in curtailing Plaintiff’s right, by illegally declaring Plaintiff a vexatious litigant without any basis or good cause.
48. 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.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: _________________

Respectfully submitted,

_______ESTHER ATAM_____

ESTHER TENDO ATAM

State of California County of Los Angeles

Subscribed and sworn to (or affirmed) before me on this ______ day of _____________, 2023, by _______________________

___________________________________________________, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.

(Seal)                                                   Signature_____________________

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