Preview
Un Hui Nam (SBN: 321543)
MEDICAL AND LAW OFFICES OF DR. UN HUI NAM, M.D., J.D. pee
1771 Woodside Road
Redwood City, CA 94061
Phone: 650.308.9478
(
Facsimile: 650.618.2228 JAN 19 2024
dr. unhui@gmail.com
Plaintiff in propria persona
SUPERIOR COURT OF CALIFORNIA
& _ Muir
Deputy Clerk
COUNTY OF SACRAMENTO
UN HUI NAM, M_D., Case No: 34-2013-00138396
Plaintiff,
MOTION TO DISQUALIFY HON. KENNETH
v. MENNEMEIER (Code Civ. Proc. §§ 170.1, 170.3);
DECLARATION OF UN HUI NAM IN
REGENTS OF THE UNIVERSITY OF SUPPORT THEREOF
CALIFORNIA; and DOES | through
20, inclusive, Date:
XV4d AG
Time:
Defendants. Dept:
Judge: Hon.
First Amended Complaint filed: 13 Sept 2011
Trial: Oct to 19 December 2023
Date Court Will Lose Jurisdiction to Decide
Motion: 20 Feb 2024
TO THE COURT, DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE
NOTICE that on 7 February 2024, at 2:00 p.m., or as soon thereafter as the matter may be heard,
Plaintiff Un Hui Faith Nam, M.D., intends to move the Court for an order recusing Hon. Kenneth
Mennemeier on the ground that there exists sufficient basis that said judge was prejudiced
against plaintiff and her lead trial attorneys Zoe Littlepage and Rainey Booth, and a person aware
of the facts might reasonably entertain doubt that the judge would be able to be impartial or that
the circumstances as alleged herein otherwise requires such disqualification in the interests of
justice. This is a post-trial Motion to Recuse Hon. Mennemeier from presiding over this and any
further proceedings in this matter pursuant to Code Civ. Proc. § § 170.1 and 170.3 and Canon 2
of the Code of Judicial Ethics: “A judge shall avoid impropriety and the appearance of
impropriety in all of the judge's activities.” If he refuses to recuse himself, Plaintiff objects to
Judge Mennemeier presiding over this matter at trial or any further proceedings because he was
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and is biased and prejudiced against Plaintiff in favor of Defendant, his former employer counsel
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based on facts set forth in the Declaration of Un Hui Nam. This includes Plaintiff's pending
Motion to Strike Costs, which Defendant improperly claims to be over $80,000 contrary to the
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law—that while prevailing plaintiffs in a FEHA or whistleblower cases are awarded their fees
and costs, prevailing defendants do not and Motions for JNOV and a New Trial. Based on the
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judge’s inability to be impartial, bias for Defendant and his prejudice against Plaintiff, she is
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Bn NOS.
extremely afraid that like the other rulings in this trial, the law will be ignored or interpreted in
such a way for Defendant’s benefit contrary to the law.
11 This motion is not intended to malign the judge’s character, honor, or ethics. On the
contrary, he seemed to be a kind human being and judge. He seemed affable, conscientious,
extremely patient (to a fault, for instance when letting counsel argue back and forth without ever
cutting them off)—the kind of judge everyone wants for their judge. But implicit bias is natural,
inevitable, and impossible to overcome. Just as trial attorneys tell potential jurors in voir dire
that just because someone is not selected for a particular case does not mean s/he would not be a
good juror; just that this might not be the right case for her/him. That was evident here and
unfortunately, the source of the implicit bias was not discovered until it was too late.
This Motion is based on this Notice of Motion, Memorandum of Points and Authorities,
the Declaration of Un Hui Nam, the papers and records on file, and such other oral and
documentary evidence as may be presented at the time of the hearing on this matter. Plaintiff
consents to this Motion being heard by the Presiding Judge Bunmi O. Awoniy or Hon.
Christopher Krueger of the Sacramento Superior Court.
18 January 2024 Respectfully submitted,
/s/ Un Hui Faith Nam
UN HUI FAITH NAM
Plaintiff in propria persona
TABLE OF CONTENTS
I. READE CIELO Nate ola hed sss csc aalvg acer uabecnc Oks eine seeing ale SQie MU anc tonto sal MUCLO eu den clot nes 3
le Standard of Review........... 4
Ill. Statement of Disqualification uA
EV soe Fs CEI ete a eo ik Fo San vgs Dowd on emu en oe tn ae ST oe gas Sap ey ete 9
A. The Judge Did Not Disclose His Prior Employment with Defendant, Creating Doubt
of his Inability to be Impartial........... e ee ee a ee 9
B. | The Law and What Limited Evidence the Judge Did Not Exclude Showed Dr.
Nam’s Whistleblowing was, at a Minimum, a Contributing Factor in the Adverse
EmploymiontcAchions:. cit Siedaissts ss ou pak eet Moka as eto aML, Se Mane sose 9
C. Overwhelming Probative Circumstantial Evidence that Defendant’s “Legitimate”
Reasons Were Pretext —They were Criticized by Defendant’s Own Internal
Physician Reviewers—Was Entirely Excluded by the Court...................00c0ee 10
D. The Judge Permitted Defendant and Its Counsel to Introduce Evidence or
Statements That were Highly Inflammatory, Unduly Prejudicial, Patently False, or
Contrary towne Law GrEVidences. ...a) scses tics aoe por cde cer skceasiert vanes shnpes 13
V. Conclusion
Motion for Recusal of Hon. Mennemeier, Code Civ. Proc. § 170.1 —-Nam v. The Regents
TABLE OF AUTHORITIES
Cases
Christie Va City OP EE Cniro (2006) ice... 2220.5 oad svncececdashesavccdbtnanesssedistecensadvicdseseatecnsaduekescnranecad i!
135 Cal.App.4th 767
Cale Ve Ruperiotse OVOP OU si 5 i iko Gace cnical waaecs teal, tosiyet nial aresdisessdatbe atm eaneieasarmnnie
97 Cal.App.4th 1142
GHGs GUC HOT COORG OM) 503K ANA sceckas sue lusivivas hsSenuiddlgy igestlowiusBerteovec se oudodeaseelgeu Mute ieee 5
23 Cal.App.4th 165
LCWO) UV SUPCHION CUBE (2 O10) ci, eed tne a cap is ocddczv nscale emt as Bucad eases hove ceo cae eh slent RS 5
50 Cal.4th 372
URE PETAGODIION OF MICHELSON. or 0 wos ocho secs sah tees AOA ws cncecaadvaiveaerMeagtee mer vevues cos pcedsvancueecgdhinvachocs@ieeeit 4
251 Cal.App.2d 222
O'Mary v. Mitsubishi Electronics America, Inc. (1997) ...ccccsecssssseseseseesssenesessesescsterseseseneseaesenensnenes 9
59 Cal.App.4th 563
United Farm Workers of America, AFL-CIO v. Superior Court (1985) ...cccsecssssssessssessessesssessee 5
170 Cal.App.3d 97
U Spostal Services Bu Of Gove: VAikens (1983) i.ci,..0..00csecskeisuaccastvesascialissssnsictocossenn
jected tea 9
460 U.S. 711
PU ECR IDSs SAINSe crete yess capo 9. aL ad counlasnonateng vests nepapexaceteatedieagsahavetnancousetbenobereftnes 4
159 Cal.App.2d 664
Statutes
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Fourth, the judge showed extreme deference to Defendant’s witnesses, even after they
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were dishonest about their availability to testify. The judge ordered Dr. Nam’s counsel to
21 accommodate their alleged travel and call them out of order, causing prejudice to Dr. Nam‘s
28 physician witnesses all of whom were outside of the area by hundreds and thousands of miles,
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causing them to cancel surgeries, clinic, and flight and hotel reservation. All of Defendant’s
anesthesiologist witnesses were just 10 minutes away and worked shifts that easily accommodate
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requests. Dr. Charandip Sandhu misrepresented to the court that she was leaving the country and
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could only be available one day, on Tues, 7 Nov. When her testimony did not finish, she was
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now available to return the next day while Dr. Nam’s other scheduled witnesses were bumped
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yet again. One of Dr. Nam’s witnesses, an orthopedic surgeon at Stanford over 120 miles away
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now could no longer appear in person as planned because of Dr. Sandhu’s misrepresentation.
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Fifth for Dr. Singh, Defendant’s key witness and appointed representative so he could
elude the rule of being excluded from the courtroom during other witness testimony, Judge
Mennemeier bent over backward, even apologizing for inconveniencing him to appear in person
for cross-examination after the conclusion of his multi-day direct examination. After he had been
present every single day of trial for the past month and a half, even for voir dire while Dr. Nam
was not, Dr. Singh now claimed he had travel plans and could only appear remotely for cross-
examination. When asked under oath, Dr. Singh admitted his travel plans were “tentative, ”
unplanned, unpaid for “day trips” to “Tahoe, Yosemite, or the Bay Area” —all locations within
a two-hour drive—or “flight here or flight there” with a friend who was at his home. Even with
his admission that it was not pre-paid travel, only tentative, and all within the area that could be
taken on any day of the three-day weekend (dark Fridays), Mennemeier granted Dr. Singh’s
request to testify remotely for his cross-examination, without any consideration that cross-
examining a witness remotely where there will be many exhibits is clunky and time-consuming
or that Dr. Nam waited an agonizing 12 years since these devastating events destroyed her entire
medical career and reputation and that everyone else including the jury was present. Then, just
like Dr. Sandhu, Dr. Singh was suddenly available to appear in-person for his re-direct after Dr.
Nam’s counsel rushed to squeeze their cross-exam into the one and only day when he, with the
court’s permission, would avail himself.
Sixth, defense counsel Eassa repeatedly and invariably asked Dr. Nam impenetrable
compound questions so she was unable to understand the question, as intended. The judge
overruled her counsel’s objection to compound such that Dr. Nam had no choice but to have the
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questions repeated dragging her time on the stand to six days, and the trial itself.
This is not an all-inclusive list of the judge’s conduct that would cause an objective
person, aware of all of the facts, reasonably to entertain a doubt as to his ability to be impartial:
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--looking the other way on Defendant’s repeated violations of Motions in Limine or highly
inflammatory insinuation that Dr. Nam wanted to or threatened to murder anyone because of an
email in which she expressly stated a comment of “to go postal—tigure of speech, I assure you”;
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-flashing alleged trial testimony on screens without a page/line citation or the certified trial
transcript in violation of Code Civ. Proc. § 273 during trial and his closing argument and
rejecting Dr. Nam’s plea that Defendant at least provide the page/line of the alleged trial
testimony or produce the single page of the alleged certified transcript.
--permitted Defendant to call a witness Elmo Orlino, M.D., at the last minute who was never on
any witness list, never deposed, forcing Dr. Nam to interrupt their trial prep for other disclosed
witnesses. Dr. Nam objected to this witness because since he had never been disclosed on a
witness list, her counsel had taken a different strategy throughout the previous six weeks of trial.
This disruption caused necessitated a one-hour deposition that cost Dr. Nam over $1200 to take.
- in an unprecedented move, allowing Defendant to argue last that defies fundamental legal
practice. Dr. Nam’s attorney filed a brief and restated her vehement objections to this
unprecedented request. She asked Mr. Eassa to name one case out of his purported 40-yrs as an
employment attorney when he was allowed to argue last, besides Defendant’s recent $39.5
million loss in another physician whistleblower retaliation case where Defendant actually sued
the physician. Mr. Eassa could not and the judge did not even follow up, instead asking him,
“Do you even need to respond? I’m going to allow Defendant to argue last.” (not verbatim)
--looking the other way when Dr. Nam’s counsel reported that Dr. Singh talked to the jury,
asking them for help to fix his glasses, laughed with them in the courtroom while the judge and
counsel were in a sidebar
--sustaining over 90% of Defendant’s objections while overruling the same for Plaintiff
--arguing for a jury instruction that neither party raised, that Dr. Nam’s residency was “at-will
employment” when it was not, never claimed as such, and contrary to the law
--arguing for another jury instruction defining what an adverse employment action that would
have been prejudicial to Dr. Nam which neither party raised
--permitting Defendant to even introduce character or propensity evidence but prohibiting Dr.
Nam’s evidence to refute it
--prohibiting Dr. Nam from introducing evidence to refute Defendant's claims that she endured
14 years of rigorous education and training to become an anesthesiologist but she never really
intended on becoming a doctor because she really always wanted to be a lawyer
--glaring at Plaintiff's counsel Zoe Littlepage so hard and long, with tight lips during her cross-
examination of Dr. Hong Liu that it scared her from even looking up at the judge
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IV. ARGUMENT
A. The Judge Did Not Disclose His Prior Employment with Defendant, Creating Doubt
of His Ability to be Impartial
Judge Mennemeier never disclosed his employment relationship with Defendant. Dr.
Nam, who was a powerless anesthesiology resident physician was already disadvantaged as the
whistleblower-employee going against her billion-dollar government-like employer, as
recognized by our Legislature and the courts. Thus, before the trial even started, armed with
what little evidence the judge and his undisclosed bias did not prohibit her from presenting to the
jury, Dr. Nam never stood a chance to overcome the character assassinating, tangential evidence
the judge welcomed from Defendant. The deck was stacked against her but she had evidence to
refute the pretextual reasons for termination except the judge refused to allow her to present it.
The evidence and the whistleblowing-encouraging laws, and his failure to disclose a conflict of
interest or recuse himself from presiding over this wrongful termination and retaliation case
against his former employer Defendant justify a new trial and new judge. An objective person,
aware of all of these facts, would reasonably entertain a doubt as to his ability to be impartial.
B. The Law and What Limited Evidence the Judge Did Not Exclude Showed Dr.
Nam’s Whistleblowing was, at a Minimum, a Contributing Factor in the Adverse
Employment Actions
“The central problem in the litigation of civil rights claims is the proof
of intent. An
employer's action may be the result ofa sensible and innocent motive —or an invidious one;
everything depends on finding out what that motive really was, and that task is often a
difficult one period” (O'Mary v. Mitsubishi Electronics America, Inc., (1997) 59 Cal.App.4th
563, 574. “All courts have recognized that the question facing triers of fact in discrimination
cases is both sensitive and difficult... There will seldom be ‘eyewitness' testimony as to the
employer's mental processes.” (U.S. Postal Service Bd. Of Govs, v. Aikens (1983) 460 U.S. 711,
716.) It is this “typical paucity of clear intent” in such cases that makes it necessary to seek
to extract the employer’s intent through “a complicated process of panning and sifting.”
(O’Mary, supra, 59 Cal.App.4th at p.575.) However, on those rare occasions when the plaintiff
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finds evidence of discriminatory intent, “it is like a gold nugget than happens to be lying on
the ground” and you “do not throw it away” because it is “overwhelmingly probative” and
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“shines a spotlight on the very thing which is the focus of the litigation.” (/d.)
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Our Legislature long recognized the enormous power and economic disparity between
employers and their employees. That could not be more true for Defendant here, with its
hundreds of thousands of employees, making it the third largest employer in the State of
California. So powerful is Defendant that it boasts of its status of a state government agency with
“full powers of organization and government” under Article IX, Section 9 of the Constitution of
the state. In this very litigation, Defendant was called “an economic powerhouse” whose goal in
filing a questionable anti-SLAPP against Dr. Nam that held it up for three long years was noted
not to win but “exact enough financial pain to induce forbearance.”
In consideration of Defendant’s vast powers and resources disproportionately outweigh
on a logarithmic scale those of an employee with whistleblower retaliation claims, the
Legislature passed laws like WPA, FEHA, HSC 1278.5, Lab. Code § 1102.5, that expressly
favor employees, encourage reports of illegal or improper activity, and purportedly protect them
from retaliation. Hence employees have a lower preponderance of the evidence burden to show
retaliation was just a “contributing factor” in their adverse employment actions or have a
rebuttable presumption of retaliation by showing the same. However, no amount of employee-
friendly legislation can overcome a judge with a secret bias or favor for the Defendant employer.
C. Overwhelming Probative Circumstantial Evidence that Defendant’s “Legitimate”
Reasons Were Pretext -They were Criticized by Defendant’s Own Internal
Physician Reviewers—Was Entirely Excluded by the Court
Dr. Ross’ report and testimony were intended to educate and provide context for lay
jurors and the Court who lack the foundation and understanding of the unique inner workings
and hierarchy of an academic residency program within a teaching institution. Even community
hospitals—non-teaching facilities—operate differently from teaching hospitals. Yet the Court
dismissed Dr. Ross’ personal experience and intimate working knowledge as one of Defendant's
teaching faculty—the very basis for which she was hand selected by Defendant to review Dr.
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Nam’s grievances—as superfluous and unhelpful. The “overwhelming probative” nature of Dr.
Ross’ original report, and even the one Defendant heavily adulterated, shined a spotlight on the
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very thing which is the focus of the litigation--misconduct by several anesthesiology
attendings supervising Dr. Nam, many of whom she reported for wrongdoing and retaliation.
Dr. Nam’s whistleblower retaliation claims should have been decided by what the facts
reveal, not by what facts are concealed. The Court’s exclusion of this rare gold nugget left Dr.
Nam with zero hope of a fair trial against the behemoth. After Dr. Nam was finally able to track
Dr. Ross in a remote part of Washington State that apparently could only be reached by boat in a
two-hour one-way excursion, Dr. Ross agreed to and did appear remotely to testify in an Offer of
Proof Evid. Code § 402 hearing. Dr. Ross was clear: she was Defendant’s authorized agent
specifically charged with reviewing Dr. Nam’s grievance about all of Defendant’s conduct which
was not, as Defendant argued contrary to the evidence, limited to just the termination. The Court
excluded this overwhelmingly probative evidence as “prejudicial” to Defendant on a basis
notably different than his original ruling, without any consideration for the well-recognized
challenge Dr. Nam had to prove retaliatory animus.
Defendant was also heavily criticized by another UCDMC physician Joseph Galante,
M.D. At the request of Defendant’s frequently retained outside investigator, a non-physician
Sue Ann Vandermyden, he reviewed some of the myriad disciplinary actions Dr. Singh and the
anesthesia dept. Vandermyden, like Dr. Ilkiw, lacked the experience and expertise to evaluate the
conduct of the attending physicians and Dr. Nam’s role as a resident. She recruited Dr. Galante,
with Defendant’s authorization, to impart his expertise and experience of Defendant’s policies
and procedures as the surgical residency program director, Dr. Singh’s counterpart. Dr. Galante
shared many of the same concerns and criticisms as Dr. Ross, finding that Dr. Pitts’ LOE
“cannot be corrective—cannot threaten resident in LOE, cannot say “Probable action taken if
immediate improvement not attained,” “cannot make it disciplinary. Dr. Galante specifically
criticized Dr. Elmo’s famous diatribe” “The July 24 one is trivial—one interaction with attending
staff—tet [it] slide unless repetitive pattern of behavior. Then you can document it as repetitive,
not one isolated incident.”
Dr. Galante criticized Dr. Singh further: “Strange to list [complaints] chronologically.
Chronological gets isolated incidents, not patterns, and can be misinterpreted.” He cites their
violations of policy: “[Dr. Nam] is never told that she might have to repeat [training]. The 6MNC
[ ] not mentioned in LOW, it sprung out”; “they did not document any follow-up meeting in 30
days”; the MICU should not have been held against her, do not let it hang over, “otherwise
building up against her.” “the LOI—this is a joke, cannot believe this is here...LOI does not
follow scheme of how we do things...sloppy...I would be confused, too. “She gets blindsided in
[Singh’s May 201 letter];” “What I see is she needs help they are not providing’; “I rarely use
investigatory leave...hurts resident and management...fear is if unsubstantiated we have hurt
resident for completion of program”; “Due process did not occur to get her to actions”;
[Complaints by other residents:] “Have to tease those out to make sure not inner-class fighting’; “Not
too late to refer [her] to wellness.” Notably, Dr. Galante’s review was done without the benefit
ofa single one of Dr. Nam’s responses for a balanced view, which explains why he thought the
alleged controlled substances issues rose to near “criminal.” In his deposition, he testified that
he was never aware that no one, including Drs. Uppington, Singh, or Schloemerkemper actually
even suspected her of drug use per their deposition testimony. (Galante Depo, 187-189:3-25.)
That Dr. Ross’ reports might necessitate undue consumption of time is also without
merit. Defendant called witness after witness to testify about the same issues repeatedly. Most of
the emails, including Dr. Orlino’s was reviewed and read line by line with at least halfa dozen
witnesses, when only one—Dr. Pitts—learned about it shortly after it occurred. The judge took
virtually no steps to urge Defendant to move its case along but permitted this repetitive,
cumulative evidence to drag the trial out for weeks after its expected completion. The jurors
complained about this. Yet Dr. Ross who would have testified that she supported Dr. Nam’s
criticisms, her expertise in putting things in context for the jury to understand the unique world
of medical residency, was completely excluded to Dr. Nam’s prejudice.
With all these facts, would a reasonable person who learns that the trial judge of her
wrongful termination and retaliation case also used to work for Defendant, question the
possibility that he may have been partial toward his former employer and its attorneys? This is
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not even a close question. But if it were, out of an abundance of caution, given the high stakes—
the complete destruction of Dr. Nam’s medical career such that she completely changed
trajectory and went to law school—the high risk of the appearance of impropriety could and
should have been avoided. Had Dr. Nam known of Judge Mennemeier’s undisclosed relationship
with Defendant, she would have moved to exclude him on Code Civ. Proc. § 170.6. She only
just discovered that the then-attorney Kenneth Mennemeier served as “Adjunct Professor, Legal
DD
Writing, King School of Law, at Defendant’s Davis law school. Kevin R. Johnson, the current,
ons
and longest-serving dean in the law school’s history, blogged about the then-attorney, calling
him “his old running buddy.”
D. The Judge Permitted Defendant and Its Counsel to Introduce Evidence or
So
Statements That were Highly Inflammatory, Unduly Prejudicial, Patently False, or
Contrary to the Law or Evidence
The discordant predominance of the Court’s rulings in Defendant’s favor and the unusual
deference shown to Defendant, which Dr. Nam will enumerate in detail in her motion to disqualify
the judge under Code Civ. Proc. § § 170.1 and 170.3, including sua sponte amendments to jury
instructions that neither party even raised, combined with this newly discovered never-disclosed
relationship, creates serious concerns of concealed bias. The Court sustained Defendant's
objections that pictures of Dr. Nam volunteering as a physician in Ethiopia, hugging her mother, or
even a picture of her scooter were overly prejudicial or argumentative. The Court asked Ms.
Littlepage, “What do pictures add?” which everyone initially thought was in jest, until it was clear
the Court gave no credence to the universal truth that “a picture speaks a thousand words.” Thus,
the Court should grant Dr. Nam, at minimum, a new trial if her concurrent Motion for JNOV is not
granted. Moreover, the judge, who was most kind, should recuse himself from presiding over any
future proceedings in this case, or another Court outside this jurisdiction should be called to do so.
Lead counsel Robert Eassa repeatedly misstated the evidence to the jury with impunity.
He promised them, and witnesses like Dr. Nam’s sister that Dr. Nam could still be an
anesthesiologist today if she wanted, that he would prove it. Then when Detendant’s witnesses
like Dr. Dhamrait roundly refuted Eassa’s “promise,” he just quietly stopped spewing the lie.
=]3+
Several times Defendant violated the motions in limine, all with impunity, which understandably
is why they continued doing it and other misconduct that would not have been tolerated in almost
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any other courtroom. For example, Defendant was instructed not to falsely accuse Dr. Nam of
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drug use or diversion, then turned right around and did so with Dr. Pitts, the very first witness.
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He misstated evidence like “Dr. Nam has not worked in 13 years” which was patently untrue.
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Multiple times, Eassa flat out misstated the law. He even argued with the Court who had to tell
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him, “I’m looking at the statute right here. [then read the statute] You’re looking at the wrong
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one below it” to which Eassa argued, “I’m looking at the judges’ benchbook.” In any other
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situation, an attorney’s credibility thereafter might be questioned such that he would have to
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demonstrate the actual law or case to which he cited. That never happened here. Counsel also
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impermissibly argued in closing what was never in evidence such as what he predicted would
have been Dr. Nam’s husband’s testimony had he testified which he did not do.
Defendant was permitted to plant this indelible unduly prejudicial, and patently false
impression in the jury’s mind repeatedly with several witnesses starting with the very first one,
Dr. Pitts. After the Court’s apparent ruling to exclude any internal review by Defendant’s own
physicians, Dr. Nam was left with virtually no way to show her billion-dollar governmental
employer’s actions were taken with retaliatory animus, for legitimate reasons. The determination
that Dr. Ross’ finding~-based on her similar academic medical training and experience—‘do not
provide any special insight in interpreting the evidence” is without merit, further creating doubt
of his ability to be impartial. No one on the jury nor the judge is a physician who has endured
years of rigorous education and training to treat and evaluate a patient, worked with hundreds of
physicians, nurses, and other medical staff in a state and highly regulated environment where
life-saving decisions are made in a split second. This analysis is off base and only a sample of
dozens of examples ofa prejudicial abuse of discretion in favor of the judge’s former employer.
CONCLUSION
Dr. Nam was denied a fair trial because of Judge Mennemeier did not recuse himself or
disclose his former relationship with Defendant which created doubt of his ability to be
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impartial. A new trial should be granted and the judge should recuse himself from presiding over
this and any further proceedings in this matter.
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DATE 18 January 2024. Respectfully Submitted,
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/s/ Un Hui Nam
By: Un Hui Nam
F&F
Plaintiff in propria persona
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DECLARATION
I, UN HUI FAITH NAM, declare:
1. Lam the Plaintiff in this wrongful termination and retaliation matter against Defendant
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The Regents of the University of California. I have personal knowledge of each fact stated
herein, except for those facts stated upon information and belief, and as to those facts, I believe
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them to be true. I could competently testify to the following facts in court if called upon to do so.
2. A true and correct copy of the two reports by Dr. Jamie Ross, M.D. is attached hereto as
Exhibit 1.
3. A true and correct copy of the anti-SLAPP decision is attached hereto as Exhibit 2.
4. A true and correct copy of Dr. Steven Shafer’s expert report is attached hereto as Exh 3.
5. A true and correct copy of the interview of Dr. Joseph Galante, M.D. by Vandermyden is
is attached hereto as Exhibit 4.
6. A true and correct copy of the online attorney profile for then-attorney Kenneth C.
Mennemeier showing he worked for Defendant as an Adjunct Professor is attached hereto as
Exhibit 5.
7. A true and correct copy of the current Dean of Defendant’s UC Davis law school blog
documenting then-attorney Kenneth C. Mennemeier was his running buddy and a King Hall
writing instructor and an article confirming Dean attached hereto as Exhibit 6.
8. A true and correct copy of MSJ Ruling by Hon. Christopher Krueger is attached hereto as
Exhibit 7.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed on 18 January 2024, at Redwood City, CA
/s/ Un Hui Nam
UN HUI NAM
PROOF OF SERVICE
I, the undersigned, declare that I am a resident of the State of California. I am over the age of
18 years. My business address is 1771 Woodside Road, Redwood City, CA 94061.
On 18 January 2024, I served the below identified with:
PLAINTIFF UN HUI FAITH NAM, M.D.'S MEMORANDUM OF POINTS AND
AUTHORITIES AND DECLARATION OF UN HUI NAM IN SUPPORT OF A NEW TRIAL
X_ by transmitting via email or electronic transmission the document(s) listed above to the
person(s) at the e-mail address(es) set forth below. The transmission was complete and
without reported error.
Delia A. Isvoranu, Esq. Attorney for Defendant,
DUANE MORRIS LLP REGENTS OF THE UNIVERSITY
One Market Plaza, Suite 2200 OF CALIFORNIA
San Francisco, California 94105
disvoranu@duanemorris.com
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed on 18January 2024, at Redwood City, CA.
/s/ Un Hui Nam
By: Un Hui Nam
Plaintiff in propria persona
EXHIBIT |
Step II Review of Termination Grievance by
Dr. Uni Hui Nam
Prepared by Dr. Jamie Ross
5/18/12
Introduction
This is a very complicated case with multiple parties involved. I have spent over 120
hours reviewing the case and discussing it with the appropriate parties. The materials
provided me are listed in Appendix A. In the course of this investigation I have met with
Dr. Nam, Dr. Moore, Dr. Uppington, and have worked closely with Elizabeth Meyer
from campus HR. Dr. Latimore has served as a representative of Dr. Nam in the two
meetings I had with her. In addition I interviewed the following faculty; Drs Fleming,
Leeman, Moser, Klein, and Murin. (See Appendix B for their titles)
I think this case reduces itself to two concepts; the letter of the law and the spirit of the
law.
Letter of the Law
With this aspect of the case, I have concluded that the letter of the law was followed with
regard to the dismissal of this resident. While this may be a selected enforcement of
regulations, it would be extremely hard to confirm any unique application of these rules.
However this is not relevant since it would be appropriate to enforce these standards in
all cases regardless. In effect, the regulations regarding showing up for work on time and
handling controlled substances were outlined to the specifically to the employee. This
employee was made aware of the deficits and she continued to have problems. She was
given a letter of warning on 5/6/10 which outlines her issues with controlled substances
and being timely to work and sign out with other physicians.
She continued to have problems in both these areas. With special regard to controlled
substances she had variances in the month of September 2011 on the 20" and 27" and
was offered Pyxis training which she refused and then was given a deadline to which she
objected. She continued to have issues with prompt sign off and coming to work at the
expected time. As documented during the period of September through December of that
year.
These issues alone would be enough to terminate this employee and proper steps were
taken with appropriate documentation to do so. This was an appropriate dismissal due to
the above issues regarding controlled substances and conduct with regard to promptness
in the workplace. The protocols were followed as in the outlined in the Graduate Medical
and the Health System .regulations. These events are not in dispute.
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Spirit of the Law or Contract
This is not just a workplace but a training institution. The intent of any resident program
is to train graduates of medical school during residency or fellowship to become excellent
and contributing members of the medical community with special skills appropriate to the
specific type of program in which the student employee is enrolled. The letter of the law
above speaks to the employee and employer relationship. I believe the spirit of the law
speaks to the relationship between student and teacher(s). In this respect the Anesthesia
program did not fulfill the spirit of this relationship.
This is much harder to “prove” or even describe but I believe I have outlined in Table 1 Sa is .
: : % ; ts 7 zy ; ROSS
and below, the issues in each year of this residents
training which I find concerning. TABLE 12
It is my conclusion that the Anesthesia department earlier that warranted by this trainee’s
documented behavior, abandoned their role as teachers and mentors. This was
abandonment as an educational entity and shift toward documentation and following the
regulations required to dismiss this student/employee.
Personality Issues
There may be a pattern of difficult personality interactions regarding the behavior of the
trainee and both fellow residents and teachers. She may engender either a conviction on
the part of some faculty that suggests she is excellent and others that consider her failing.
She was described as either extremely pleasant easy to work with or the most difficult
resident the evaluator had. The pattern of polarized faculty appraisal is extremely
concerning. Especially in a field such as anesthesia when harmony in the operating room
is essential to delivery of optimum care.
The multiple and extensive investigations have documented the responses of many co-
workers and faculty. This is something that | verified in my interviews as well. The
descriptions of those working with her were as follows; confrontational, poor response to
criticism, lack of insight into her own behavior, inability to accept responsibility for her
actions, does not follow instructions if she does not agree with them even from
Attendings. Many of the respondents felt she was unpredictable and eccentric and odd.
She was described several times as frequently late. | can not dispute the consistency with
which these descriptors were used. (Also noted in the document prepared by Ms. Van
Dermyden on page 47)
Mentoring/Teaching Issues
From July 2009 on it seems that this student trainee was singled out for unique treatment.
The issues described in the letter of expectation on September 22"! 2009 are all
describing events that occurred in the first month of training and by the assigned
Mentor’s letter of August 2009 were minor and not likely to justify a disciplinary
reaction. Some of these events in the MICU were part of this letter despite being
dated just one day after her MICU rotation started. (See schedule provided by
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Anesthesia department) The LOE was then a documentation of poor behavior and
allowed acceleration of the usual steps in discipline. If her personality and
communication style was thought to be provocative then she would have benefitted from
training in communication and or other appropriate alternatives available within the
health system at this point. The present structure of the Anesthesia department may not
have been able to offer this resident the amount of attention she both demanded and
required.
To be balanced the Anesthesia department gave the trainee multiple opportunities to
improve and repair her status. She did not take advantage of the many opportunities she
was given. The mentorship system was designed to assist her in studying for her every 6
months exams. Several of her mentors did not recall that she took this seriously initially.
Her exam scores reflect this as well. She was required with regard to personal
relationships to seek feedback from her Attendings and review the results with her
mentors. This was not something as judged by multiple emails she did consistently or
willingly.
However there are concerning examples of a lack of interest in training this resident. One
attending wrote a letter stating that this trainee “chipped” a tooth of what would seem and
easy intubation on a patient. They had “heard” she had had two such events before. This
letter stated that this attending would not allow this student to intubate any other of this
attending’s patients. This is an inappropriate response in a teaching institution. I would
have been as concerned about the faculty response as much as the ability of my resident.
More appropriate responses would have been; to make sure this resident got appropriate
instruction if needed, to document if this resident had more dental issues than the rest of
the trainees, and/or to assign this trainee to research dental issues in the general field and
at UC Davis in particular. Instead this stands in her file as one attending’s condemnation
of an anesthesia resident’s skill. Another example is the evaluations of Dr. Lui in her first
year of training. He gave her failing marks in the Cardiothoracic Anesthesia rotation two
months in a row. There was no comment written and none was sought from this Faculty.
The residency director, in fact, seemed to be unaware that most other residency programs
expect an extensive explanation from faculty for failing a resident.
A concerning use of disciplinary action is the use of investigatory leave in June 2010 to
evaluate conduct regarding resident only arguments. If no patient care was involved
where the trainee is a danger to patients then | am not familiar with the use of
investigatory leave to evaluate disputes where no threats or violence took place. In
addition, none of the other participants in these events were put on leave. If one were
going to use this investigative tool then putting only one party on leave suggests an
assignment of quilt. The “guilt” was not assigned to her at the conclusion of the
investigation and yet the use of the words unprofessional conduct was continued with
reference to this episode in her next disciplinary letters. She received a disciplinary
action in May, June and July of 2010. The July letter using a Letter of Instructions is also
something not commonly used but seems to assign “blame” for events that were cleared
up by the previous investigation. Each of the above three letters was about something
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different but in some way was referring to the previous issues. During this period there
was no time for the trainee to actually address these issues and make any progress.
By the time September 2011 arrived and she returned from an extended investigatory
leave that was done to evaluate multiple complaints given by her fellow residents with
regard to the use of either verbally of physically threatening behavior. These allegations
will sincerely felt by many residents were not substantiated during the almost 3 month
investigation period. When she returned to the work in September 2011, the environment
was truly hostile. I have never seen the volume or minutia reported in the multiple letters
documented. Some of which have merit and some are disturbing in the sense that this is
what was thought of as important to document. Some describe what I can only assume is
conversations about non-essential issues that may have been interrupting patient care and
were perpetuated by Attendings. However this does not obviate the trainee’s
responsibility to show up for work on time and handle controlled substances
appropriately.
Conclusions:
T am overwhelmed by the conviction on each side that the other is completely in the
“wrong” and that the position held by the side they are on is completely justified and has
been completely right all along.
1 find that there is enough “fault” to go around on all sides. No one is objective or
completely forthcoming about any events in which they are involved or may weaken their
point of view.
Suggestions for Action
1. Iam inclined to let the dismissal be acknowledged as following appropriate
protocol for documentable and types of events that are appropriate for dismissal.
2. Ido believe that by the end of the training this was a hostile work environment
even if there was no specific retaliation there was no opportunity for the trainee to
succeed. Some compensation might be offered for her stress with this regard. She
is given some compensation for any unpaid sick leave and an appropriate
allowance allowing her to obtain some counseling for the next 12 months or so.
| do not believe that returning her to UC Davis in any residency program will
Ww
benefit her in anyway. Nor is it appropriate under the circumstances.
4. I believe that additional support needs to be offered to the Anesthesiology and all
the residency programs in identifying and appropriate alternatives to handling
trainees with significant difficulties in their personal interactions.
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UNIVERSITY OF CALIFORNIA, DAVIS
BERKELEY ¢ DAVIS © IRVINE © LOS ANGELES * MERCED ¢ RIVERSIDE © SANDIEGO * SAN FRANCISCO
AVENUE
DAVIS, CALIFORNIA 95616
Tel (330) 754-8892
Fax (530) 752-1289
June 15, 2012
Nam, Un Hui, M.D.
2316 Swarthmore Drive
Sacramento, CA 95825
RE: Complainant: Nam, Un Hui
File: 12PP834
Issue; Dismissal
Dear Dr. Nam:
Attached, please find the Step 2 response to the above-referenced complaint, as issued by Dr.
Jaime Ross. Based on Dr. Ross’s response, your grievance is denied.
Under Resident Medical Staff (RMS) Personnel Policy 440.12 you have 10 calendar days from
the date of this decision to appeal the complaint to Step III. If you do wish to file an appeal, please
email your appeal letter to either myself or Lisa Harry (at lharry@ucdavis.edu) within the 10-day
timeline no later than 5:00 pm on June 25, 2012.
If you have any questions, please feel free to email or call our office.
Sincerely,
‘FE GRQ. Meg
Elizabeth Meyer
Employee & Labor Relations
Attachments:
Preview
Un Hui Nam (SBN: 321543) MEDICAL AND LAW OFFICES OF DR. UN HUI NAM, M.D., J.D. pee 1771 Woodside Road Redwood City, CA 94061 Phone: 650.308.9478 ( Facsimile: 650.618.2228 JAN 19 2024 dr. unhui@gmail.com Plaintiff in propria persona SUPERIOR COURT OF CALIFORNIA & _ Muir Deputy Clerk COUNTY OF SACRAMENTO UN HUI NAM, M_D., Case No: 34-2013-00138396 Plaintiff, MOTION TO DISQUALIFY HON. KENNETH v. MENNEMEIER (Code Civ. Proc. §§ 170.1, 170.3); DECLARATION OF UN HUI NAM IN REGENTS OF THE UNIVERSITY OF SUPPORT THEREOF CALIFORNIA; and DOES | through 20, inclusive, Date: XV4d AG Time: Defendants. Dept: Judge: Hon. First Amended Complaint filed: 13 Sept 2011 Trial: Oct to 19 December 2023 Date Court Will Lose Jurisdiction to Decide Motion: 20 Feb 2024 TO THE COURT, DEFENDANT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on 7 February 2024, at 2:00 p.m., or as soon thereafter as the matter may be heard, Plaintiff Un Hui Faith Nam, M.D., intends to move the Court for an order recusing Hon. Kenneth Mennemeier on the ground that there exists sufficient basis that said judge was prejudiced against plaintiff and her lead trial attorneys Zoe Littlepage and Rainey Booth, and a person aware of the facts might reasonably entertain doubt that the judge would be able to be impartial or that the circumstances as alleged herein otherwise requires such disqualification in the interests of justice. This is a post-trial Motion to Recuse Hon. Mennemeier from presiding over this and any further proceedings in this matter pursuant to Code Civ. Proc. § § 170.1 and 170.3 and Canon 2 of the Code of Judicial Ethics: “A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.” If he refuses to recuse himself, Plaintiff objects to Judge Mennemeier presiding over this matter at trial or any further proceedings because he was N and is biased and prejudiced against Plaintiff in favor of Defendant, his former employer counsel &Ww based on facts set forth in the Declaration of Un Hui Nam. This includes Plaintiff's pending Motion to Strike Costs, which Defendant improperly claims to be over $80,000 contrary to the A law—that while prevailing plaintiffs in a FEHA or whistleblower cases are awarded their fees and costs, prevailing defendants do not and Motions for JNOV and a New Trial. Based on the SQ judge’s inability to be impartial, bias for Defendant and his prejudice against Plaintiff, she is 60 Bn NOS. extremely afraid that like the other rulings in this trial, the law will be ignored or interpreted in such a way for Defendant’s benefit contrary to the law. 11 This motion is not intended to malign the judge’s character, honor, or ethics. On the contrary, he seemed to be a kind human being and judge. He seemed affable, conscientious, extremely patient (to a fault, for instance when letting counsel argue back and forth without ever cutting them off)—the kind of judge everyone wants for their judge. But implicit bias is natural, inevitable, and impossible to overcome. Just as trial attorneys tell potential jurors in voir dire that just because someone is not selected for a particular case does not mean s/he would not be a good juror; just that this might not be the right case for her/him. That was evident here and unfortunately, the source of the implicit bias was not discovered until it was too late. This Motion is based on this Notice of Motion, Memorandum of Points and Authorities, the Declaration of Un Hui Nam, the papers and records on file, and such other oral and documentary evidence as may be presented at the time of the hearing on this matter. Plaintiff consents to this Motion being heard by the Presiding Judge Bunmi O. Awoniy or Hon. Christopher Krueger of the Sacramento Superior Court. 18 January 2024 Respectfully submitted, /s/ Un Hui Faith Nam UN HUI FAITH NAM Plaintiff in propria persona TABLE OF CONTENTS I. READE CIELO Nate ola hed sss csc aalvg acer uabecnc Oks eine seeing ale SQie MU anc tonto sal MUCLO eu den clot nes 3 le Standard of Review........... 4 Ill. Statement of Disqualification uA EV soe Fs CEI ete a eo ik Fo San vgs Dowd on emu en oe tn ae ST oe gas Sap ey ete 9 A. The Judge Did Not Disclose His Prior Employment with Defendant, Creating Doubt of his Inability to be Impartial........... e ee ee a ee 9 B. | The Law and What Limited Evidence the Judge Did Not Exclude Showed Dr. Nam’s Whistleblowing was, at a Minimum, a Contributing Factor in the Adverse EmploymiontcAchions:. cit Siedaissts ss ou pak eet Moka as eto aML, Se Mane sose 9 C. Overwhelming Probative Circumstantial Evidence that Defendant’s “Legitimate” Reasons Were Pretext —They were Criticized by Defendant’s Own Internal Physician Reviewers—Was Entirely Excluded by the Court...................00c0ee 10 D. The Judge Permitted Defendant and Its Counsel to Introduce Evidence or Statements That were Highly Inflammatory, Unduly Prejudicial, Patently False, or Contrary towne Law GrEVidences. ...a) scses tics aoe por cde cer skceasiert vanes shnpes 13 V. Conclusion Motion for Recusal of Hon. Mennemeier, Code Civ. Proc. § 170.1 —-Nam v. The Regents TABLE OF AUTHORITIES Cases Christie Va City OP EE Cniro (2006) ice... 2220.5 oad svncececdashesavccdbtnanesssedistecensadvicdseseatecnsaduekescnranecad i! 135 Cal.App.4th 767 Cale Ve Ruperiotse OVOP OU si 5 i iko Gace cnical waaecs teal, tosiyet nial aresdisessdatbe atm eaneieasarmnnie 97 Cal.App.4th 1142 GHGs GUC HOT COORG OM) 503K ANA sceckas sue lusivivas hsSenuiddlgy igestlowiusBerteovec se oudodeaseelgeu Mute ieee 5 23 Cal.App.4th 165 LCWO) UV SUPCHION CUBE (2 O10) ci, eed tne a cap is ocddczv nscale emt as Bucad eases hove ceo cae eh slent RS 5 50 Cal.4th 372 URE PETAGODIION OF MICHELSON. or 0 wos ocho secs sah tees AOA ws cncecaadvaiveaerMeagtee mer vevues cos pcedsvancueecgdhinvachocs@ieeeit 4 251 Cal.App.2d 222 O'Mary v. Mitsubishi Electronics America, Inc. (1997) ...ccccsecssssseseseseesssenesessesescsterseseseneseaesenensnenes 9 59 Cal.App.4th 563 United Farm Workers of America, AFL-CIO v. Superior Court (1985) ...cccsecssssssessssessessesssessee 5 170 Cal.App.3d 97 U Spostal Services Bu Of Gove: VAikens (1983) i.ci,..0..00csecskeisuaccastvesascialissssnsictocossenn jected tea 9 460 U.S. 711 PU ECR IDSs SAINSe crete yess capo 9. aL ad counlasnonateng vests nepapexaceteatedieagsahavetnancousetbenobereftnes 4 159 Cal.App.2d 664 Statutes RE OL ENC ab Mires ucts soecksacesaysnctvoneced a causscensssaagesuonsaureuedt eas bassaswecucetecnccaees 3.455013: Gee at ey Ue ate ee access cas ens ay 4s enysdbZ nN Fourth, the judge showed extreme deference to Defendant’s witnesses, even after they ior) nN were dishonest about their availability to testify. The judge ordered Dr. Nam’s counsel to 21 accommodate their alleged travel and call them out of order, causing prejudice to Dr. Nam‘s 28 physician witnesses all of whom were outside of the area by hundreds and thousands of miles, wig causing them to cancel surgeries, clinic, and flight and hotel reservation. All of Defendant’s anesthesiologist witnesses were just 10 minutes away and worked shifts that easily accommodate N requests. Dr. Charandip Sandhu misrepresented to the court that she was leaving the country and WwW could only be available one day, on Tues, 7 Nov. When her testimony did not finish, she was Ff now available to return the next day while Dr. Nam’s other scheduled witnesses were bumped WA yet again. One of Dr. Nam’s witnesses, an orthopedic surgeon at Stanford over 120 miles away DH now could no longer appear in person as planned because of Dr. Sandhu’s misrepresentation. YY Fifth for Dr. Singh, Defendant’s key witness and appointed representative so he could elude the rule of being excluded from the courtroom during other witness testimony, Judge Mennemeier bent over backward, even apologizing for inconveniencing him to appear in person for cross-examination after the conclusion of his multi-day direct examination. After he had been present every single day of trial for the past month and a half, even for voir dire while Dr. Nam was not, Dr. Singh now claimed he had travel plans and could only appear remotely for cross- examination. When asked under oath, Dr. Singh admitted his travel plans were “tentative, ” unplanned, unpaid for “day trips” to “Tahoe, Yosemite, or the Bay Area” —all locations within a two-hour drive—or “flight here or flight there” with a friend who was at his home. Even with his admission that it was not pre-paid travel, only tentative, and all within the area that could be taken on any day of the three-day weekend (dark Fridays), Mennemeier granted Dr. Singh’s request to testify remotely for his cross-examination, without any consideration that cross- examining a witness remotely where there will be many exhibits is clunky and time-consuming or that Dr. Nam waited an agonizing 12 years since these devastating events destroyed her entire medical career and reputation and that everyone else including the jury was present. Then, just like Dr. Sandhu, Dr. Singh was suddenly available to appear in-person for his re-direct after Dr. Nam’s counsel rushed to squeeze their cross-exam into the one and only day when he, with the court’s permission, would avail himself. Sixth, defense counsel Eassa repeatedly and invariably asked Dr. Nam impenetrable compound questions so she was unable to understand the question, as intended. The judge overruled her counsel’s objection to compound such that Dr. Nam had no choice but to have the ie questions repeated dragging her time on the stand to six days, and the trial itself. This is not an all-inclusive list of the judge’s conduct that would cause an objective person, aware of all of the facts, reasonably to entertain a doubt as to his ability to be impartial: Go --looking the other way on Defendant’s repeated violations of Motions in Limine or highly inflammatory insinuation that Dr. Nam wanted to or threatened to murder anyone because of an email in which she expressly stated a comment of “to go postal—tigure of speech, I assure you”; wn -flashing alleged trial testimony on screens without a page/line citation or the certified trial transcript in violation of Code Civ. Proc. § 273 during trial and his closing argument and rejecting Dr. Nam’s plea that Defendant at least provide the page/line of the alleged trial testimony or produce the single page of the alleged certified transcript. --permitted Defendant to call a witness Elmo Orlino, M.D., at the last minute who was never on any witness list, never deposed, forcing Dr. Nam to interrupt their trial prep for other disclosed witnesses. Dr. Nam objected to this witness because since he had never been disclosed on a witness list, her counsel had taken a different strategy throughout the previous six weeks of trial. This disruption caused necessitated a one-hour deposition that cost Dr. Nam over $1200 to take. - in an unprecedented move, allowing Defendant to argue last that defies fundamental legal practice. Dr. Nam’s attorney filed a brief and restated her vehement objections to this unprecedented request. She asked Mr. Eassa to name one case out of his purported 40-yrs as an employment attorney when he was allowed to argue last, besides Defendant’s recent $39.5 million loss in another physician whistleblower retaliation case where Defendant actually sued the physician. Mr. Eassa could not and the judge did not even follow up, instead asking him, “Do you even need to respond? I’m going to allow Defendant to argue last.” (not verbatim) --looking the other way when Dr. Nam’s counsel reported that Dr. Singh talked to the jury, asking them for help to fix his glasses, laughed with them in the courtroom while the judge and counsel were in a sidebar --sustaining over 90% of Defendant’s objections while overruling the same for Plaintiff --arguing for a jury instruction that neither party raised, that Dr. Nam’s residency was “at-will employment” when it was not, never claimed as such, and contrary to the law --arguing for another jury instruction defining what an adverse employment action that would have been prejudicial to Dr. Nam which neither party raised --permitting Defendant to even introduce character or propensity evidence but prohibiting Dr. Nam’s evidence to refute it --prohibiting Dr. Nam from introducing evidence to refute Defendant's claims that she endured 14 years of rigorous education and training to become an anesthesiologist but she never really intended on becoming a doctor because she really always wanted to be a lawyer --glaring at Plaintiff's counsel Zoe Littlepage so hard and long, with tight lips during her cross- examination of Dr. Hong Liu that it scared her from even looking up at the judge -8- IV. ARGUMENT A. The Judge Did Not Disclose His Prior Employment with Defendant, Creating Doubt of His Ability to be Impartial Judge Mennemeier never disclosed his employment relationship with Defendant. Dr. Nam, who was a powerless anesthesiology resident physician was already disadvantaged as the whistleblower-employee going against her billion-dollar government-like employer, as recognized by our Legislature and the courts. Thus, before the trial even started, armed with what little evidence the judge and his undisclosed bias did not prohibit her from presenting to the jury, Dr. Nam never stood a chance to overcome the character assassinating, tangential evidence the judge welcomed from Defendant. The deck was stacked against her but she had evidence to refute the pretextual reasons for termination except the judge refused to allow her to present it. The evidence and the whistleblowing-encouraging laws, and his failure to disclose a conflict of interest or recuse himself from presiding over this wrongful termination and retaliation case against his former employer Defendant justify a new trial and new judge. An objective person, aware of all of these facts, would reasonably entertain a doubt as to his ability to be impartial. B. The Law and What Limited Evidence the Judge Did Not Exclude Showed Dr. Nam’s Whistleblowing was, at a Minimum, a Contributing Factor in the Adverse Employment Actions “The central problem in the litigation of civil rights claims is the proof of intent. An employer's action may be the result ofa sensible and innocent motive —or an invidious one; everything depends on finding out what that motive really was, and that task is often a difficult one period” (O'Mary v. Mitsubishi Electronics America, Inc., (1997) 59 Cal.App.4th 563, 574. “All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult... There will seldom be ‘eyewitness' testimony as to the employer's mental processes.” (U.S. Postal Service Bd. Of Govs, v. Aikens (1983) 460 U.S. 711, 716.) It is this “typical paucity of clear intent” in such cases that makes it necessary to seek to extract the employer’s intent through “a complicated process of panning and sifting.” (O’Mary, supra, 59 Cal.App.4th at p.575.) However, on those rare occasions when the plaintiff 10's finds evidence of discriminatory intent, “it is like a gold nugget than happens to be lying on the ground” and you “do not throw it away” because it is “overwhelmingly probative” and nN “shines a spotlight on the very thing which is the focus of the litigation.” (/d.) Lo Our Legislature long recognized the enormous power and economic disparity between employers and their employees. That could not be more true for Defendant here, with its hundreds of thousands of employees, making it the third largest employer in the State of California. So powerful is Defendant that it boasts of its status of a state government agency with “full powers of organization and government” under Article IX, Section 9 of the Constitution of the state. In this very litigation, Defendant was called “an economic powerhouse” whose goal in filing a questionable anti-SLAPP against Dr. Nam that held it up for three long years was noted not to win but “exact enough financial pain to induce forbearance.” In consideration of Defendant’s vast powers and resources disproportionately outweigh on a logarithmic scale those of an employee with whistleblower retaliation claims, the Legislature passed laws like WPA, FEHA, HSC 1278.5, Lab. Code § 1102.5, that expressly favor employees, encourage reports of illegal or improper activity, and purportedly protect them from retaliation. Hence employees have a lower preponderance of the evidence burden to show retaliation was just a “contributing factor” in their adverse employment actions or have a rebuttable presumption of retaliation by showing the same. However, no amount of employee- friendly legislation can overcome a judge with a secret bias or favor for the Defendant employer. C. Overwhelming Probative Circumstantial Evidence that Defendant’s “Legitimate” Reasons Were Pretext -They were Criticized by Defendant’s Own Internal Physician Reviewers—Was Entirely Excluded by the Court Dr. Ross’ report and testimony were intended to educate and provide context for lay jurors and the Court who lack the foundation and understanding of the unique inner workings and hierarchy of an academic residency program within a teaching institution. Even community hospitals—non-teaching facilities—operate differently from teaching hospitals. Yet the Court dismissed Dr. Ross’ personal experience and intimate working knowledge as one of Defendant's teaching faculty—the very basis for which she was hand selected by Defendant to review Dr. «10 Nam’s grievances—as superfluous and unhelpful. The “overwhelming probative” nature of Dr. Ross’ original report, and even the one Defendant heavily adulterated, shined a spotlight on the nN very thing which is the focus of the litigation--misconduct by several anesthesiology attendings supervising Dr. Nam, many of whom she reported for wrongdoing and retaliation. Dr. Nam’s whistleblower retaliation claims should have been decided by what the facts reveal, not by what facts are concealed. The Court’s exclusion of this rare gold nugget left Dr. Nam with zero hope of a fair trial against the behemoth. After Dr. Nam was finally able to track Dr. Ross in a remote part of Washington State that apparently could only be reached by boat in a two-hour one-way excursion, Dr. Ross agreed to and did appear remotely to testify in an Offer of Proof Evid. Code § 402 hearing. Dr. Ross was clear: she was Defendant’s authorized agent specifically charged with reviewing Dr. Nam’s grievance about all of Defendant’s conduct which was not, as Defendant argued contrary to the evidence, limited to just the termination. The Court excluded this overwhelmingly probative evidence as “prejudicial” to Defendant on a basis notably different than his original ruling, without any consideration for the well-recognized challenge Dr. Nam had to prove retaliatory animus. Defendant was also heavily criticized by another UCDMC physician Joseph Galante, M.D. At the request of Defendant’s frequently retained outside investigator, a non-physician Sue Ann Vandermyden, he reviewed some of the myriad disciplinary actions Dr. Singh and the anesthesia dept. Vandermyden, like Dr. Ilkiw, lacked the experience and expertise to evaluate the conduct of the attending physicians and Dr. Nam’s role as a resident. She recruited Dr. Galante, with Defendant’s authorization, to impart his expertise and experience of Defendant’s policies and procedures as the surgical residency program director, Dr. Singh’s counterpart. Dr. Galante shared many of the same concerns and criticisms as Dr. Ross, finding that Dr. Pitts’ LOE “cannot be corrective—cannot threaten resident in LOE, cannot say “Probable action taken if immediate improvement not attained,” “cannot make it disciplinary. Dr. Galante specifically criticized Dr. Elmo’s famous diatribe” “The July 24 one is trivial—one interaction with attending staff—tet [it] slide unless repetitive pattern of behavior. Then you can document it as repetitive, not one isolated incident.” Dr. Galante criticized Dr. Singh further: “Strange to list [complaints] chronologically. Chronological gets isolated incidents, not patterns, and can be misinterpreted.” He cites their violations of policy: “[Dr. Nam] is never told that she might have to repeat [training]. The 6MNC [ ] not mentioned in LOW, it sprung out”; “they did not document any follow-up meeting in 30 days”; the MICU should not have been held against her, do not let it hang over, “otherwise building up against her.” “the LOI—this is a joke, cannot believe this is here...LOI does not follow scheme of how we do things...sloppy...I would be confused, too. “She gets blindsided in [Singh’s May 201 letter];” “What I see is she needs help they are not providing’; “I rarely use investigatory leave...hurts resident and management...fear is if unsubstantiated we have hurt resident for completion of program”; “Due process did not occur to get her to actions”; [Complaints by other residents:] “Have to tease those out to make sure not inner-class fighting’; “Not too late to refer [her] to wellness.” Notably, Dr. Galante’s review was done without the benefit ofa single one of Dr. Nam’s responses for a balanced view, which explains why he thought the alleged controlled substances issues rose to near “criminal.” In his deposition, he testified that he was never aware that no one, including Drs. Uppington, Singh, or Schloemerkemper actually even suspected her of drug use per their deposition testimony. (Galante Depo, 187-189:3-25.) That Dr. Ross’ reports might necessitate undue consumption of time is also without merit. Defendant called witness after witness to testify about the same issues repeatedly. Most of the emails, including Dr. Orlino’s was reviewed and read line by line with at least halfa dozen witnesses, when only one—Dr. Pitts—learned about it shortly after it occurred. The judge took virtually no steps to urge Defendant to move its case along but permitted this repetitive, cumulative evidence to drag the trial out for weeks after its expected completion. The jurors complained about this. Yet Dr. Ross who would have testified that she supported Dr. Nam’s criticisms, her expertise in putting things in context for the jury to understand the unique world of medical residency, was completely excluded to Dr. Nam’s prejudice. With all these facts, would a reasonable person who learns that the trial judge of her wrongful termination and retaliation case also used to work for Defendant, question the possibility that he may have been partial toward his former employer and its attorneys? This is 143:- not even a close question. But if it were, out of an abundance of caution, given the high stakes— the complete destruction of Dr. Nam’s medical career such that she completely changed trajectory and went to law school—the high risk of the appearance of impropriety could and should have been avoided. Had Dr. Nam known of Judge Mennemeier’s undisclosed relationship with Defendant, she would have moved to exclude him on Code Civ. Proc. § 170.6. She only just discovered that the then-attorney Kenneth Mennemeier served as “Adjunct Professor, Legal DD Writing, King School of Law, at Defendant’s Davis law school. Kevin R. Johnson, the current, ons and longest-serving dean in the law school’s history, blogged about the then-attorney, calling him “his old running buddy.” D. The Judge Permitted Defendant and Its Counsel to Introduce Evidence or So Statements That were Highly Inflammatory, Unduly Prejudicial, Patently False, or Contrary to the Law or Evidence The discordant predominance of the Court’s rulings in Defendant’s favor and the unusual deference shown to Defendant, which Dr. Nam will enumerate in detail in her motion to disqualify the judge under Code Civ. Proc. § § 170.1 and 170.3, including sua sponte amendments to jury instructions that neither party even raised, combined with this newly discovered never-disclosed relationship, creates serious concerns of concealed bias. The Court sustained Defendant's objections that pictures of Dr. Nam volunteering as a physician in Ethiopia, hugging her mother, or even a picture of her scooter were overly prejudicial or argumentative. The Court asked Ms. Littlepage, “What do pictures add?” which everyone initially thought was in jest, until it was clear the Court gave no credence to the universal truth that “a picture speaks a thousand words.” Thus, the Court should grant Dr. Nam, at minimum, a new trial if her concurrent Motion for JNOV is not granted. Moreover, the judge, who was most kind, should recuse himself from presiding over any future proceedings in this case, or another Court outside this jurisdiction should be called to do so. Lead counsel Robert Eassa repeatedly misstated the evidence to the jury with impunity. He promised them, and witnesses like Dr. Nam’s sister that Dr. Nam could still be an anesthesiologist today if she wanted, that he would prove it. Then when Detendant’s witnesses like Dr. Dhamrait roundly refuted Eassa’s “promise,” he just quietly stopped spewing the lie. =]3+ Several times Defendant violated the motions in limine, all with impunity, which understandably is why they continued doing it and other misconduct that would not have been tolerated in almost N any other courtroom. For example, Defendant was instructed not to falsely accuse Dr. Nam of WwW drug use or diversion, then turned right around and did so with Dr. Pitts, the very first witness. & He misstated evidence like “Dr. Nam has not worked in 13 years” which was patently untrue. nA Multiple times, Eassa flat out misstated the law. He even argued with the Court who had to tell OH him, “I’m looking at the statute right here. [then read the statute] You’re looking at the wrong 1 one below it” to which Eassa argued, “I’m looking at the judges’ benchbook.” In any other 282 situation, an attorney’s credibility thereafter might be questioned such that he would have to SS demonstrate the actual law or case to which he cited. That never happened here. Counsel also Oo impermissibly argued in closing what was never in evidence such as what he predicted would have been Dr. Nam’s husband’s testimony had he testified which he did not do. Defendant was permitted to plant this indelible unduly prejudicial, and patently false impression in the jury’s mind repeatedly with several witnesses starting with the very first one, Dr. Pitts. After the Court’s apparent ruling to exclude any internal review by Defendant’s own physicians, Dr. Nam was left with virtually no way to show her billion-dollar governmental employer’s actions were taken with retaliatory animus, for legitimate reasons. The determination that Dr. Ross’ finding~-based on her similar academic medical training and experience—‘do not provide any special insight in interpreting the evidence” is without merit, further creating doubt of his ability to be impartial. No one on the jury nor the judge is a physician who has endured years of rigorous education and training to treat and evaluate a patient, worked with hundreds of physicians, nurses, and other medical staff in a state and highly regulated environment where life-saving decisions are made in a split second. This analysis is off base and only a sample of dozens of examples ofa prejudicial abuse of discretion in favor of the judge’s former employer. CONCLUSION Dr. Nam was denied a fair trial because of Judge Mennemeier did not recuse himself or disclose his former relationship with Defendant which created doubt of his ability to be «Ps impartial. A new trial should be granted and the judge should recuse himself from presiding over this and any further proceedings in this matter. N DATE 18 January 2024. Respectfully Submitted, WwW /s/ Un Hui Nam By: Un Hui Nam F&F Plaintiff in propria persona a Oy ots DECLARATION I, UN HUI FAITH NAM, declare: 1. Lam the Plaintiff in this wrongful termination and retaliation matter against Defendant ios} The Regents of the University of California. I have personal knowledge of each fact stated herein, except for those facts stated upon information and belief, and as to those facts, I believe nN them to be true. I could competently testify to the following facts in court if called upon to do so. 2. A true and correct copy of the two reports by Dr. Jamie Ross, M.D. is attached hereto as Exhibit 1. 3. A true and correct copy of the anti-SLAPP decision is attached hereto as Exhibit 2. 4. A true and correct copy of Dr. Steven Shafer’s expert report is attached hereto as Exh 3. 5. A true and correct copy of the interview of Dr. Joseph Galante, M.D. by Vandermyden is is attached hereto as Exhibit 4. 6. A true and correct copy of the online attorney profile for then-attorney Kenneth C. Mennemeier showing he worked for Defendant as an Adjunct Professor is attached hereto as Exhibit 5. 7. A true and correct copy of the current Dean of Defendant’s UC Davis law school blog documenting then-attorney Kenneth C. Mennemeier was his running buddy and a King Hall writing instructor and an article confirming Dean attached hereto as Exhibit 6. 8. A true and correct copy of MSJ Ruling by Hon. Christopher Krueger is attached hereto as Exhibit 7. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 18 January 2024, at Redwood City, CA /s/ Un Hui Nam UN HUI NAM PROOF OF SERVICE I, the undersigned, declare that I am a resident of the State of California. I am over the age of 18 years. My business address is 1771 Woodside Road, Redwood City, CA 94061. On 18 January 2024, I served the below identified with: PLAINTIFF UN HUI FAITH NAM, M.D.'S MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF UN HUI NAM IN SUPPORT OF A NEW TRIAL X_ by transmitting via email or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. The transmission was complete and without reported error. Delia A. Isvoranu, Esq. Attorney for Defendant, DUANE MORRIS LLP REGENTS OF THE UNIVERSITY One Market Plaza, Suite 2200 OF CALIFORNIA San Francisco, California 94105 disvoranu@duanemorris.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 18January 2024, at Redwood City, CA. /s/ Un Hui Nam By: Un Hui Nam Plaintiff in propria persona EXHIBIT | Step II Review of Termination Grievance by Dr. Uni Hui Nam Prepared by Dr. Jamie Ross 5/18/12 Introduction This is a very complicated case with multiple parties involved. I have spent over 120 hours reviewing the case and discussing it with the appropriate parties. The materials provided me are listed in Appendix A. In the course of this investigation I have met with Dr. Nam, Dr. Moore, Dr. Uppington, and have worked closely with Elizabeth Meyer from campus HR. Dr. Latimore has served as a representative of Dr. Nam in the two meetings I had with her. In addition I interviewed the following faculty; Drs Fleming, Leeman, Moser, Klein, and Murin. (See Appendix B for their titles) I think this case reduces itself to two concepts; the letter of the law and the spirit of the law. Letter of the Law With this aspect of the case, I have concluded that the letter of the law was followed with regard to the dismissal of this resident. While this may be a selected enforcement of regulations, it would be extremely hard to confirm any unique application of these rules. However this is not relevant since it would be appropriate to enforce these standards in all cases regardless. In effect, the regulations regarding showing up for work on time and handling controlled substances were outlined to the specifically to the employee. This employee was made aware of the deficits and she continued to have problems. She was given a letter of warning on 5/6/10 which outlines her issues with controlled substances and being timely to work and sign out with other physicians. She continued to have problems in both these areas. With special regard to controlled substances she had variances in the month of September 2011 on the 20" and 27" and was offered Pyxis training which she refused and then was given a deadline to which she objected. She continued to have issues with prompt sign off and coming to work at the expected time. As documented during the period of September through December of that year. These issues alone would be enough to terminate this employee and proper steps were taken with appropriate documentation to do so. This was an appropriate dismissal due to the above issues regarding controlled substances and conduct with regard to promptness in the workplace. The protocols were followed as in the outlined in the Graduate Medical and the Health System .regulations. These events are not in dispute. UC4319 Spirit of the Law or Contract This is not just a workplace but a training institution. The intent of any resident program is to train graduates of medical school during residency or fellowship to become excellent and contributing members of the medical community with special skills appropriate to the specific type of program in which the student employee is enrolled. The letter of the law above speaks to the employee and employer relationship. I believe the spirit of the law speaks to the relationship between student and teacher(s). In this respect the Anesthesia program did not fulfill the spirit of this relationship. This is much harder to “prove” or even describe but I believe I have outlined in Table 1 Sa is . : : % ; ts 7 zy ; ROSS and below, the issues in each year of this residents training which I find concerning. TABLE 12 It is my conclusion that the Anesthesia department earlier that warranted by this trainee’s documented behavior, abandoned their role as teachers and mentors. This was abandonment as an educational entity and shift toward documentation and following the regulations required to dismiss this student/employee. Personality Issues There may be a pattern of difficult personality interactions regarding the behavior of the trainee and both fellow residents and teachers. She may engender either a conviction on the part of some faculty that suggests she is excellent and others that consider her failing. She was described as either extremely pleasant easy to work with or the most difficult resident the evaluator had. The pattern of polarized faculty appraisal is extremely concerning. Especially in a field such as anesthesia when harmony in the operating room is essential to delivery of optimum care. The multiple and extensive investigations have documented the responses of many co- workers and faculty. This is something that | verified in my interviews as well. The descriptions of those working with her were as follows; confrontational, poor response to criticism, lack of insight into her own behavior, inability to accept responsibility for her actions, does not follow instructions if she does not agree with them even from Attendings. Many of the respondents felt she was unpredictable and eccentric and odd. She was described several times as frequently late. | can not dispute the consistency with which these descriptors were used. (Also noted in the document prepared by Ms. Van Dermyden on page 47) Mentoring/Teaching Issues From July 2009 on it seems that this student trainee was singled out for unique treatment. The issues described in the letter of expectation on September 22"! 2009 are all describing events that occurred in the first month of training and by the assigned Mentor’s letter of August 2009 were minor and not likely to justify a disciplinary reaction. Some of these events in the MICU were part of this letter despite being dated just one day after her MICU rotation started. (See schedule provided by UC4320 Anesthesia department) The LOE was then a documentation of poor behavior and allowed acceleration of the usual steps in discipline. If her personality and communication style was thought to be provocative then she would have benefitted from training in communication and or other appropriate alternatives available within the health system at this point. The present structure of the Anesthesia department may not have been able to offer this resident the amount of attention she both demanded and required. To be balanced the Anesthesia department gave the trainee multiple opportunities to improve and repair her status. She did not take advantage of the many opportunities she was given. The mentorship system was designed to assist her in studying for her every 6 months exams. Several of her mentors did not recall that she took this seriously initially. Her exam scores reflect this as well. She was required with regard to personal relationships to seek feedback from her Attendings and review the results with her mentors. This was not something as judged by multiple emails she did consistently or willingly. However there are concerning examples of a lack of interest in training this resident. One attending wrote a letter stating that this trainee “chipped” a tooth of what would seem and easy intubation on a patient. They had “heard” she had had two such events before. This letter stated that this attending would not allow this student to intubate any other of this attending’s patients. This is an inappropriate response in a teaching institution. I would have been as concerned about the faculty response as much as the ability of my resident. More appropriate responses would have been; to make sure this resident got appropriate instruction if needed, to document if this resident had more dental issues than the rest of the trainees, and/or to assign this trainee to research dental issues in the general field and at UC Davis in particular. Instead this stands in her file as one attending’s condemnation of an anesthesia resident’s skill. Another example is the evaluations of Dr. Lui in her first year of training. He gave her failing marks in the Cardiothoracic Anesthesia rotation two months in a row. There was no comment written and none was sought from this Faculty. The residency director, in fact, seemed to be unaware that most other residency programs expect an extensive explanation from faculty for failing a resident. A concerning use of disciplinary action is the use of investigatory leave in June 2010 to evaluate conduct regarding resident only arguments. If no patient care was involved where the trainee is a danger to patients then | am not familiar with the use of investigatory leave to evaluate disputes where no threats or violence took place. In addition, none of the other participants in these events were put on leave. If one were going to use this investigative tool then putting only one party on leave suggests an assignment of quilt. The “guilt” was not assigned to her at the conclusion of the investigation and yet the use of the words unprofessional conduct was continued with reference to this episode in her next disciplinary letters. She received a disciplinary action in May, June and July of 2010. The July letter using a Letter of Instructions is also something not commonly used but seems to assign “blame” for events that were cleared up by the previous investigation. Each of the above three letters was about something UC4321 different but in some way was referring to the previous issues. During this period there was no time for the trainee to actually address these issues and make any progress. By the time September 2011 arrived and she returned from an extended investigatory leave that was done to evaluate multiple complaints given by her fellow residents with regard to the use of either verbally of physically threatening behavior. These allegations will sincerely felt by many residents were not substantiated during the almost 3 month investigation period. When she returned to the work in September 2011, the environment was truly hostile. I have never seen the volume or minutia reported in the multiple letters documented. Some of which have merit and some are disturbing in the sense that this is what was thought of as important to document. Some describe what I can only assume is conversations about non-essential issues that may have been interrupting patient care and were perpetuated by Attendings. However this does not obviate the trainee’s responsibility to show up for work on time and handle controlled substances appropriately. Conclusions: T am overwhelmed by the conviction on each side that the other is completely in the “wrong” and that the position held by the side they are on is completely justified and has been completely right all along. 1 find that there is enough “fault” to go around on all sides. No one is objective or completely forthcoming about any events in which they are involved or may weaken their point of view. Suggestions for Action 1. Iam inclined to let the dismissal be acknowledged as following appropriate protocol for documentable and types of events that are appropriate for dismissal. 2. Ido believe that by the end of the training this was a hostile work environment even if there was no specific retaliation there was no opportunity for the trainee to succeed. Some compensation might be offered for her stress with this regard. She is given some compensation for any unpaid sick leave and an appropriate allowance allowing her to obtain some counseling for the next 12 months or so. | do not believe that returning her to UC Davis in any residency program will Ww benefit her in anyway. Nor is it appropriate under the circumstances. 4. I believe that additional support needs to be offered to the Anesthesiology and all the residency programs in identifying and appropriate alternatives to handling trainees with significant difficulties in their personal interactions. UC4322 UNIVERSITY OF CALIFORNIA, DAVIS BERKELEY ¢ DAVIS © IRVINE © LOS ANGELES * MERCED ¢ RIVERSIDE © SANDIEGO * SAN FRANCISCO AVENUE DAVIS, CALIFORNIA 95616 Tel (330) 754-8892 Fax (530) 752-1289 June 15, 2012 Nam, Un Hui, M.D. 2316 Swarthmore Drive Sacramento, CA 95825 RE: Complainant: Nam, Un Hui File: 12PP834 Issue; Dismissal Dear Dr. Nam: Attached, please find the Step 2 response to the above-referenced complaint, as issued by Dr. Jaime Ross. Based on Dr. Ross’s response, your grievance is denied. Under Resident Medical Staff (RMS) Personnel Policy 440.12 you have 10 calendar days from the date of this decision to appeal the complaint to Step III. If you do wish to file an appeal, please email your appeal letter to either myself or Lisa Harry (at lharry@ucdavis.edu) within the 10-day timeline no later than 5:00 pm on June 25, 2012. If you have any questions, please feel free to email or call our office. Sincerely, ‘FE GRQ. Meg Elizabeth Meyer Employee & Labor Relations Attachments: