In Pro Per
FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on October 16, 2003 at 3:00 p.m., or as soon as the matter can be heard in Department 30 of the Superior Court for the County of San Diego, North County Regional Center, located at 325 South Melrose, Vista, California 92081-6645, plaintiff Jacquelyn Finney will move the Court to reconsider the Court’s Telephonic Ruling (7/24/2003) and denial of oral argument at hearing on plaintiff’s Motion for Protective Order for Order to Compel and for Imposition of Sanctions pursuant to California Code of Civil Procedure § 1008. Plaintiff will also move for Order Shortening Time to Hearing Date and Order to Submit Memorandum of Points and Authorities Exceeding 15 pages. This motion is made on the grounds that new and different facts, circumstances and law justify reconsideration, including but not limited to the following:
The Court’s surprise reversal of its February 20, 2003 Ruling that wrongly restricted plaintiff’s cause of action for breach of contract, misconstruing it as "narrow" in violation of controlling and binding authorities of the California Supreme Court (Thor) and the Federal 9th Circuit (Conant), California Public Policy, and the common law doctrine of informed consent, and the Court's prior Ruling, noting the allegations of unconscionable "gagging, coercion, retaliation and public policy."
The effect of Governor Davis’ recall election upon the availability of material witnesses who have personal knowledge of facts and spoliation of evidence pertaining to all contracts and breaches of those contracts between the Department of Managed Health Care (DMHC) and its agents and plaintiff.
The Court’s failure to rule on defendants’ accommodation of plaintiff’s polio disability by defendants' attorneys throughout the conduct of this action and otherwise ignoring her express request for protective order.
The Court’s refusal to entertain oral argument at which time plaintiff could have moved for a continuance to explain, amend and otherwise correct the Court’s perceived minor defects in plaintiff’s pleadings that materially contributed to the unjust denial of plaintiff’s motion and the unjust imposition of sanctions and to test the truth of Attorney Sturdevant's declarations.
The Court’s improper and incorrect imposition of its own opinion that Secretary Maria Contreras-Sweet’s deposition is not reasonably calculated to lead to the discovery of admissible evidence absent declarations under penalty of perjury from the Secretary and her counsel denying that she is the sole authority who is able to bind the State and to testify that the State is bound to the implied in fact contract created by the California Patient’s Guide, and other representations and conduct, creating the implied in fact contract upon which plaintiff relied to her detriment to enforce her Knox-Keene Act rights, protections and mandated benefits.
The Court’s failure to establish a rule as guidance to the parties on noticing and taking the depositions of Cabinet Secretary Daniel Zingale (a named defendant) and all government witnesses pursuant to its sole reliance on and citation of State Board of Pharmacy v. Superior Court as controlling legal authority in contradiction to plaintiff’s reliance upon Nagel v. Superior Court, which supports the taking these depositions absent declarations that deny personal knowledge of facts which withstand testing of their truth.
The Court’s chilling of plaintiff’s right to petition by its failure to cite its standards and criteria in awarding sanctions on the grounds that plaintiff did not act with substantial justification or other circumstances that did not make the imposition of sanctions unjust at present and in the future, subjecting plaintiff to unconscionable coercion and retaliation by the Court and defendants for pursuing her cause of action.
The Court’s failure to act in the interest of justice and legal ethics by refusing to question at all, much less to test the truth of Attorney Sturdevant’s initial declaration and supplemental corrected declaration to the Court re: a pattern of dishonesty and/or perjury discovered by plaintiff and reported to the Court.
The Court’s refusal to be bound by controlling federal and state legal authorities that condemn and render unenforceable unconscionable health plan contracts and contract terms and conditions that are approved and sanctioned by DMHC in the exercise of its mandated duty to license and regulate the contracts' compliance with controlling legal authority.
Reconsideration of the Court’s ruling involves numerous matters of exceptional importance to plaintiff and to the health and safety of all California citizens who have the courage to petition the Court in opposition to the full force and power of the State.
Plaintiff’s rights to free speech, to petition to the court and to obtain mandated benefits free from coercion and retaliation in violation of her rights under the U.S. Constitution, First Amendment, the California Constitution Article 1 § 3, the common law doctrine of informed consent, California Code of Civil Procedure, California Public Policy and the Knox-Keene Act have been ignored by this Court, which has rendered them illusory.
On July 31, 2003, the California Supreme Court ruled (The People v. Arlene Sanders, S094088, Ct.App.5 F033862) that: "Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens…" The Supreme Court further noted that "our society attaches serious consequences to violation of constitutional rights."
This motion will be based this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Jacquelyn Finney, the attached Exhibits, the record and files and this case, and any further documentary evidence introduced at the hearing of this motion.
Jacquelyn Finney Date
Plaintiff, In Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiff Jacquelyn Finney respectfully requests that this Court reconsider its Telephonic Ruling, dated July 24, 2003 (Exhibit No.1) and stay further proceedings until these disputes are resolved by both this Court and, if necessary, the Court of Appeals. Plaintiff has made unsuccessful good faith efforts to meet and confer with defendants’ counsel James Novello on July 30, 2003 regarding this Motion, extending its defendants' pattern of misconduct pursuant to plaintiff's prior meet and confer efforts. (Motion for Protective Order, 5/1/2003, Exhibits Nos. 1 & 5) Plaintiff's efforts to expeditiously further this litigation absent the Court’s appropriate and proper involvement has resulted in a pattern of coercion and retaliation intended to chill the exercise of her rights through a pattern of misconduct that shocks the conscience.
Plaintiff’s Motion for Protective Order, Order to Compel and Order for Imposition of Sanctions, far from being frivolous, insubstantial and/or malicious have arguable merit and are supported by thorough investigation, undisputed factual documentation and clear and convincing controlling legal authority.
The Court’s vagueness, selective use and absurd interpretation of facts in isolation, in tandem with the Court’s refusal to entertain oral argument, hardly inspires confidence that the Court carefully and objectively reviewed plaintiff’s pleadings.
Especially disconcerting are the Court’s refusal to investigate plaintiff’s uncontradicted evidence of defendants’ attorneys’ dishonesty and/or perjury and the award of the full amount of sanctions against plaintiff to pay defendants’ attorneys fees that defendants’ own pleadings and declarations show are more than arguably bogus and intended to punish and deter plaintiff from the application of her investigative skills and her diligence in documenting defendants' illegality.
II. Statement of Facts
Plaintiff’s statement of facts is undisputed by defendants and this Court. However, the Court has ignored them and has sanctioned plaintiff without entertaining oral argument in the interest of justice and to determine other circumstances rendering the Court’s ruling and the imposition of sanctions manifestly unjust.
Plaintiff’s position is supported by Judge Crosby [Titmas v. Superior Court (2001) Cal.App.4th 738, 104 Cal.Rptr.2d 803]:
"We do not subscribe to the obscurantist notion that justice, like wild mushrooms, thrives on manure in the dark. Presiding Justice Gilbert observed, ‘Just as a theater critic must see the play before writing a review, judges must carefully consider the evidence before deciding a case. The lifeblood of our judicial institutions depends upon judges rendering decisions that are the product of a reasoned and objective view of the law and the facts.’" [Rose v Superior Court (2000) 81 Cal.App.4th 564.]
A. The Court’s July 24, 2003 Ruling Constitutes New Law that Contradicts the Court’s February 20, 2003 Ruling and Controlling Legal Authorities
The Court’s 2/20/2003 Ruling accepting as true plaintiff’s allegations that:
"…defendants ‘gagged’ plaintiff and prevented her from communicating with her health care service plan and its contract physicians in regard to California Public Policy and her rights under the Act and retaliated against plaintiff by denying her a second opinion for dermatology care from the specialist of her choice for dermatology care within the health care physician group… to the extent that the fourth cause of action alleges that defendants failed to allow plaintiff to have a second opinion as required by Health and Safety Code Section 1383.15(F), sufficient facts have been pled to state a cause of action for breach of contract."
The Court’s July 24, 2003 Ruling is a 180 degree reversal of its 2/20/2003 Ruling and completely surprised plaintiff. The 7/24/2003 Ruling (in contrast to the identification of broad issues of "gagging," coercion, retaliation, physician-patient communication in violation of the common law Doctrine of Informed Consent, California Public Policy and her rights under the Knox-Keene Act) stated that:
"The proposed scope of the depositions set forth in plaintiff’s ‘Memo’ [Exhibit No.1 to Plaintiff’s Declaration] is not reasonably calculated to lead to the discovery of admissible evidence in regard to the sole and narrow [emphasis supplied] issue of whether defendants breached a contract with plaintiff by failing to permit her a second opinion."
Without notice to plaintiff and without affording her the opportunity for a hearing and oral argument, the Court adopted defendants' pretextual position that the Legislative Intent of the Knox-Keene Act—the preservation of the traditional relationship of trust and communication between patient and professional—is irrelevant to plaintiff’s broad allegations that support her breach of contract cause of action.
Defendants contended (Opposition to Protective Order, June 3, 2003, p.2, lines 1-2) that: "…that narrow (emphasis supplied) allegation is the sole remaining issue in this case."
The Court’s interpretation that the proposed scope of the deposition set forth in Plaintiff’s Memo is exhaustive is plainly incorrect and plainly inappropriate to the interpretation of the Court’s February 20, 2003 Ruling. Plaintiff is not required to relinquish her right not to disclose her legal strategy, including all deposition inquiry topics in advance.
Clearly, as is intended by the deposition process, the Secretary’s answers will greatly expand the scope of the inquiry. She will testify to the truth or falsity of the California Patient’s Guide, other statements and conduct (the implied in fact contract) upon which plaintiff has relied to her detriment. If the Guide and other statements and conduct are fraudulent, the State’s clear intent was to intentionally defraud plaintiff and the entire class of persons who have been and will be induced to rely on the Guide, other statements by defendants and their conduct rendering benefits illusory and all contracts with defendants pursuant to their statements and conduct fraudulent and unconscionable.
Defendants’ opinion that gagging, coercion, retaliation, California Public Policy, and informed consent are irrelevant to a medical opinion that complies with any professional standard of care is akin to an opinion that the Watergate Congressional hearings were intended to investigate a "narrow allegation" of burglary.
Rulings should be "reasoned decisions, rather than decisions with reasons…" [In re: Rose (2000) 22 Cal.4th 430] Because of basic due process concerns, law and motion judges are always on shaky ground where they "entirely bar parties from having a say." [Mediterranean Construction v. State Farm (1998) 66 Cal.App4th 257]
Plaintiff has provided evidence of numerous contracts (Motion, p. 14, lines 8-21 and Reply, p. 5, lines 10-28, p.6, lines 1-10) directly relevant to the mandated benefit of a second medical opinion pursuant to Health and Safety Code § 1383.15(F).
Moreover, a second medical opinion absent informed consent and subject to coercion and retaliation is tantamount to rendering illusory all medical opinions under the Knox-Keene Act, rendering the Act unconstitutional and absurd in its entirety. The legislative intent of the Act is to implement California Public Policy to preserve and protect the traditional relationship of trust and confidence between patient and professional.
The broad scope of plaintiff’s contract cause of action is undeniable. Defendants are defrauding all managed health care patients of their rights and benefits under the Act and the Guide (an implied in fact contract) in conspiracy with the health plans they regulate and other parties through a labyrinth of unconscionable "off the books" contracts that violate patient rights and render patient contract benefits illusory.
B. Plaintiff’s March 18, 2003 Concern of Witness Availability and Spoliation of Evidence Due to Governor Davis’ Recall Was Not Frivolous and Is a New and Material Circumstance.
On March 18, 2003, plaintiff sent a letter to Attorney Sturdevant, communicating her intent to notice the deposition of Agency Secretary Maria Contreras-Sweet pursuant to subsequent good faith meet and confer efforts and trust that defendants’ attorneys would reciprocate and conduct themselves pursuant to the Rules of Professional Conduct. Instead, Attorney Sturdevant responded by letter warning of her intent to file a SLAPP-suit type action and request for sanctions, if plaintiff formally noticed the deposition.
Plaintiff’s concern proved prescient when the recall election date was set on July 25, 2003, one day after this Court’s ruling. The election will be held on October 7, 2003, approximately ten days prior to the scheduled Telephonic Ruling on this Motion. If Governor Davis is recalled, the new Governor will take office the next day and will arguably remove all Davis appointees, including Secretary Contreras-Sweet and Cabinet Secretary Zingale and other material witnesses, plus virtually ensuring spoliation of evidence.
Plaintiff will suffer incalculable injustice, delay and expense to depose these witnesses and obtain the production of their documents to which she is entitled. Arguably these witnesses and their documents will be unavailable to plaintiff due to this Court’s refusal to grant plaintiff’s Protective Order.
Plaintiff will suffer irreparable harm if the Court does not act to expeditiously require the State to cease, desist, and prevent spoliation of evidence, as plaintiff had requested three months ago in her Motion for Protective Order (p.15, line 19) and to produce all witnesses and documents reasonably requested absent declared and tested
justification to withhold them in full or in part. (p.15, lines 17-18)
C. The Court’s Failure to Rule on Accommodation of Plaintiff’s Polio Disability is Conducive to Harassment for an Improper Purpose
Plaintiff’s March 18, 2003 letter to Attorney Sturdevant (Motion Protective Order, Exhibit No. 1) specifically requested that she make reasonable accommodations regarding plaintiff’s polio disability. Ms. Sturdevant ignored plaintiff’s request.
Plaintiff’s Motion for Protective Order (p.15, lines 10-22) requested that the Court order defendants to reasonably accommodate plaintiff’s polio disability. The Court’s Ruling ignored plaintiff’s request.
San Diego Superior Court Rules Division II—Civil, Duties Owed to Members of the Bar provide that:
"(5) Lawyers should not use discovery to harass the opposition or for any improper purpose.
(7) Lawyers should not arbitrarily or unreasonably withhold consent to a just and reasonable request for cooperation or accommodation."
By ignoring plaintiff’s polio disability, which in and of itself merits a strong protective order, the Court has enabled defendants to improperly harass and to otherwise put plaintiff at a grievous disadvantage in the expeditious pursuit of her case. Indeed, defendants’ malicious and frivolous tactics (including but not limited to denial of virtually indisputable matters such as matters of public record, i.e., their own patient rights Guide) have severely exacerbated plaintiff’s intractable pain and other symptoms, and has distressed plaintiff's husband, her sole caregiver.
Plaintiff directs the Court’s attention to Engalla v. Kaiser Permanente Medical Group (S048811, June 30, 1997) in which the same health plan and physicians that have violated this plaintiff's rights, was found by a California Appeals Court and the California Supreme Court to have intentionally and unconscionably delayed arbitration until after Mr. Engalla's death. Kaiser’s entire arbitration system was found to be an unconscionable contract provision that was deemed unenforceable. The trial Court had upheld Kaiser’s arbitration provision and was overruled.
Plaintiff’s Request for Assistance to defendants (Petition, Memo of Points & Authorities, Exhibit No. 2) detailed Kaiser’s notorious historical pattern of ignoring patient rights (as detailed in DMHC’s Guide) that caused the death of patients without remorse or correction by Kaiser, including Margaret Utterback (as referenced in the Guide's Introduction and the Secretary's Press Releases to which she must testify). Defendants’ clear intent is to apply, in their regulation of health plans, Kaiser’s unconscionable practices of violating the rights of disabled and seriously ill patients to avoid accountability.
Secretary Contreras-Sweet's Press Releases claim credit for imposing a one million dollar fine against Kaiser for causing Ms. Utterbach's death. Defendants' website displayed their "Accusation" against Kaiser, listing all of defendants' findings that led to the fine. Plaintiff relied on defendants' findings of Knox-Keene Act violations in this Accusation prior to submitting her Request for Assistance (RFA) to defendants. Secretary Contreras-Sweet has personal knowledge of the Utterback Accusation and its relation to violations of plaintiff's rights. Plaintiff's March 18, 2003 letter to Attorney Sturdevant (Motion for Protective Order, Exhibit No.1) stated that the Secretary would testify to defendants' knowledge of Kaiser's illegal practices in the Utterback Accusation as well as the Guide.
Defendants’ make reasonable accommodations for disabled attorney and nurse consultant DMHC job applicants. (Exhibits Nos. 2 & 3)
The Court’s July 24, 2003 Ruling that plaintiff’s Motion for a Protective Order "fails to identify the precise nature of the protective order" pertaining to the accommodation of plaintiff’s polio disability is the equivalent of a "Get Out of Jail Free" card in defendants’ monopoly game with the life and death of vulnerable patients in conspiracy with Kaiser and all health plans to minimize State budget expenditures and maximize HMO profits.
The Judicial Council of California's Administrative Office interprets Rule of Court 989.3, stating at Q&A #4 that: "The Court is encouraged to ask the person with the disability to suggest an accommodation."
Judge Croskey ruled in Datig v. Dove Books (1999) 73 Cal.App.4th 964:
"Violation of statewide rules of court and/or local rules is sanctionable by payment of the opposing party’s reasonable expenses and counsel fees (Cal Rules of Court, rule 227). Furthermore, use of sanctions against both attorneys and clients has been commended by our Supreme Court as an appropriate method for dealing with unjustified litigation (Sheldon Appel Co v. Albert & Oliker (1989) 47Cal.3d 863)."
D. The Court’s Refusal to Entertain Oral Argument at Plaintiff’s Request Has Resulted in Error, Injustice, and Harm
The Court’s July 24, 2003 Order improperly focuses on form over substance and denies plaintiff’s requests that are supported by evidence, facts and legal authorities on grounds of immaterial technicalities, which could have been easily cured had the Court entertained oral argument as requested by plaintiff, i.e.:
The Court’s ruling that plaintiff’s motion fails to identify the "precise" (emphasis supplied) nature of the protective order sought ignores the precision of "Proposed Particulars of the Order" as stated in Plaintiff’s Motion’s Memorandum of Points and Authorities. (p.15, lines 10-22)
The Court’s ruling that plaintiff failed to "properly" (emphasis supplied) notice the deposition ignores defendants’ SLAPP-suit type action coercion and retaliation threatened by Attorney Sturdevant in her April 1, 2003 letter responding to plaintiff’s March 18, 2003 letter formally noticing her intent to depose Secretary Contreras-Sweet. (Plaintiff’s Motion, pp.3-7, p.13, lines 6-17, p.14, lines 22-28, p.15, lines 1-3 & lines 23-28) Indeed, defendants’ coercion and threat of retaliation was the catalyst for plaintiff’s Motion for Protective Order.
The Court’s ruling ignored the findings in Nagle (1994) authority and based its finding that plaintiff failed to demonstrate compelling reasons for taking the Secretary’s deposition on State Board of Pharmacy (1978). Clearly, Nagle is applicable, if not controlling in this matter.
The Court’s ruling ignored all of plaintiff’s legal and factual reasons for taking the Secretary’s deposition and based it decision solely on Exhibit No.1 to plaintiff’s declaration, which is a summary, not an exhaustive list of deposition topics. Plaintiff’s Motion explains her justification for the deposition in more than sufficient detail (pp.3-6, pp.7-12, p.13 lines 1-5, lines 18-28, p.14, lines 1-21, p.15 lines 23-28, p.16, lines 1-2, lines 11-16, p.17 lines 1-12).
The Court’s July 24, 2003 ruling that the breach of contract is a "narrow" issue flatly ignores and contradicts the Court’s February 20, 2003 ruling. Moreover, plaintiff’s Motion and Reply reflected the Court’s finding that the issue is very broad, in compliance with the Federal and State Constitutions, California Common Law and California Public Policy in freedom of speech, petition and the intent of the Legislature. (Motion, Reply, Declarations and Exhibits in their entirety)
The Court’s ruling ignored plaintiff’s substantial justification and other circumstances in filing her motion, improperly awarding sanctions to defendants, ignoring plaintiff’s evidence that the attorneys' fees are bogus and are unjustified and the declarations on which they are based are more than arguably false. (Plaintiff’s Reply, Declaration and Supplemental Declaration)
"Sufficient has been stated to illustrate that courts look to substance rather than form, and in the interest of serving the tradition that litigation and adjudication are a search for the truth, and that especially at the trial level, a party will be insured his day in court." (Lacy v. Laurentide Finance Corp, 28 Cal.App.3d 251)
"In cases without number the state courts have declared contracts, transactions, and activities of individuals, associations and corporations to be contrary to public policy where their legislative departments have not spoken on the subject." (Safeway Stores v. Retail Clerks Assn, 41 Cal.2d. 567).
"By public policy is intended that principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or the public good… Public Policy means… anything which tends to undermine that sense of security for individual rights, whether personal liberty or private property, which any citizen ought to feel is against public policy…" (Supra Safeway Stores)
"The use of the word ‘trial’ would seem to involve something more than a one-way message on the internet." [Medix Ambulance v. Superior Court (2002), Cal.App.4th]
Justice Crosby stated in TJX v. Superior Court (2001) 87 Cal.App.4th 747, 104 Cal.Rptr. 2d 810 that:
"We take literally Justice Frankfurter’s admonition that ‘justice must satisfy the appearance of justice [Offutt v. United States (1954) 348 U.S. 11, 14 [75 S. Ct.11, 13, 99 L.Ed. 11] In performing its judicial function, the court must avoid even the appearance of unfairness… It is wise public policy to conduct judicial proceedings in the sunshine unless there is a very good reason not to do so. The convenience of trial judges is not such a reason."
E. The Court’s Ruling States Facts that Defendants’ Attorneys Did Not Offer As Evidence and that Do Not Comply with New Federal Law
The Court based its ruling, that the Secretary’s deposition "is not reasonably calculated to lead to the discovery of admissible evidence", upon an exhibit to plaintiff’s declaration. Pursuant to Nagle, neither Attorney Sturdevant nor Secretary Contreras-Sweet denied in declarations under penalty of perjury that the Secretary had personal knowledge of the facts of the case, although they had multiple opportunities to so declare for four months (March-June 2003). If they could have, they would have provided declarations, assuming absence of penalty for perjury arguably now imposed by the Court.
The Court ignored plaintiff’s legal authorities that only the Agency Secretary has the power to bind the government to the implied in fact contract (Guide) with plaintiff, upon which the Nurse’s express oral contract and DMHC’s third party contract to benefit plaintiff are based.
The Court’s ruling is unsupported and is highly prejudicial to plaintiff’s ability to prove her cause of action. Plaintiff has shown good cause for taking this deposition.
Judge Compton stated in Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d., 177 Cal.Rptr.236:
"The trial court was in no position to determine in advance of the depositions the… relevance of the questions to be asked… answers given by a witness to particular questions often suggest additional questions or another line of inquiry. In the deposition process, these questions can immediately be posed or the other line of inquiry pursued on the spot."
"If the elements of contract formation are absent, then the government was acting solely in its regulatory capacity; if a contract was formed, then the government may be liable for its breach. To assert that the government was acting solely in its regulatory capacity is to assert a conclusion about contractual liability, not a premise that negates it… Nor can the characterization of ‘regulatory’ or ‘supervisory’ absolve the government of its contractual liability if it is shown that the government has indeed bound itself by contract [emphasis supplied] (U.S. Court of Appeals for the Federal Circuit, 02-5183, First Commerce Corp v. United States, July 16, 2003.)"
The Court’s Ruling that Exhibit No.1 to plaintiff’s Declaration (i.e., that the Secretary's deposition is not reasonably calculated to lead to the discovery of admissible evidence) ignores the Secretary’s statements of the strict enforcement of patient rights that are intended to induce managed care patients to believe that she, Governor Davis, defendant Zingale, and defendant DMHC recognize and disapprove of Kaiser’s illegal conduct that caused the death of Margaret Utterback which would be prevented in the future. Plaintiff relied upon those statements in the submission of her Request for Assistance on January 29, 2002 and subsequently discussed her reliance on the Utterback enforcement action (Accusation) to DMHC agent Kim Sheer whose supervisor was then Attorney Novello.
Plaintiff’s Petition pleadings and Motion pleadings allege and show that defendants are permitting this pattern of misconduct to continue. Plaintiff’s Memo and attached Press Releases show good cause to take the Secretary’s deposition in addition to other policy making officials. Defendants caused plaintiff and other patients to rely to their detriment on their strict enforcement of patient rights pursuant to their enforcement action fining Kaiser one million dollars for causing Mrs. Utterback's death.
F. The Court’s Ruling Ignores Plaintiff’s Right to Depose Other State Government Officials
Plaintiff’s Motion (p.3, lines 27-28, pp.4, 13, 14, 16) states facts to show cause to depose Governor Davis, Cabinet Secretary Zingale, and other top government officials who have personal factual knowledge to prove plaintiff’s cause of action and who will enable plaintiff to test the truth of defendants’ Answer and affirmative defenses. Plaintiff’s Reply (p.3, lines 11-28, p.4, lines 1-7, pp.5-12) also states facts to show cause to depose other top government officials.
Plaintiff expressly stated in her Reply (p.12, lines 26-28) that:
"Absent a Protective Order and Order to Compel, defendants’ attorneys will also contend that no authority supports the taking of defendant Zingale’s deposition."
Judge Peters ruled in Burke v. Superior Court, 71 Cal.2d. 276 that:
"A defendant in California courts may be required through discovery to disclose not only the evidentiary facts underlying his affirmative defenses (Singer v. Superior Court 54 Cal.2d. 318… but also whether or not he makes a particular contention, either as to facts or as to the possible issues in the case."
Judge Spenser ruled in Simi Corp v. Garamendi (2003) Cal.App.4th that:
"There are two broad categories of factors relevant to a court’s assessment of an administrative agency’s interpretation of a regulation. The categories are (1) ‘factors that the agency has a comparative advantage over the courts [in interpreting the regulations at issue]’ and (2) factors ‘indicating that the interpretation in question is probably correct.’"
"A court may look to the form of the interpretation and whether it was prepared by senior agency officials or by staff members. It may also consider whether the agency has adhered consistently to the interpretation at issue and whether there was an opportunity for comment to be made on that interpretation."
Judge McGuiness ruled in Kerns v. CSE Insurance Group (2003) Cal.App.4th that:
"A court must, whenever possible, construe a statute so as to preserve its constitutional validity (Kraus v. Trinity Management Services 23 Cal.4th 129)."
Judge Peters ruled in Greyhound Corp v. Superior Court 56 Cal.2d. 355 in regard to the doctrine of liberal construction of the California Discovery Act that:
"For the guidance of the trial courts the proper rule is declared to be not only one of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it. Even in those instances wherein the statute requires a showing of good cause, that showing must be liberally construed."
Defendant Zingale, now Governor Davis’ Cabinet Secretary, continues to induce managed health care patients to rely upon express and implied fraudulent statements regarding the implied in fact contract enforcement of their rights under the Knox- Keene Act.
On July 11, 2003, one day after this Court’s first continuance of plaintiff’s Motion, defendant DMHC distributed an article (Exhibit No. 4) regarding new rules to post basic patient rights information in doctors’ offices and hospital waiting areas. DMHC said the rules are aimed at boosting protections under the state’s patients’ rights laws, i.e.:
"Those rights are only useful if patients are aware that they exist, said Daniel Zingale, Governor Davis’ Cabinet Secretary… The model for disclosure the state is proposing is not unlike a state mandate that automotive repair shops post consumer rights, Zingale said. We think that standard, at the very least, should apply to something as critical as health care."
G. The Court’s Imposition of Sanctions Has Chilled Plaintiff’s Exercise of her Right to Petition the Court
The Court’s ruling and refusal to entertain oral argument preordained the imposition of sanctions without disclosure of any evidence whatsoever to prove that plaintiff acted without substantial justification or other circumstances which make the sanctions unjust. Simply put, plaintiff wrongly pays the price, and defendants wrongly get paid to exploit her.Absent disclosure of the Court’s standards, criteria and evidence (with the same particularity that the Court required of plaintiff as to the "precise nature of the protective order sought") plaintiff has been harmed and is at future risk of the unconstitutional taking of her property without due process of law by defendants and the Court for the duration of this action. Plaintiff is now compelled to speculate on the propriety of the Court’s motives as well as the Court’s diligence and competence in reading and applying the facts in her meticulously researched pleading of the controlling legal authorities (pursuant to the Court’s February 20, 2003 Ruling) pertaining to her motion, e.g.:
Did plaintiff’s Motion for Protective Order to compel defendants' attorneys from exploiting her polio disability, In Pro Per status, or other condition, in violation of the following rules and laws, cause the imposition of sanctions? i.e.:San Diego Superior Court Rules, Division II—Civil, Duties, Section No. 7, i.e.: "Lawyers should not arbitrarily or unreasonably withhold consent to a just and reasonable request for cooperation or accommodation."
San Diego Superior Court Rules, Chapter Two. General Rules, Rule 1.6, Policy Against Bias, i.e.:
"It is the policy of the court to provide an environment free from all types of bias, prejudice, any kind of discrimination, or unfair practice. All judges…court officers… shall perform their duties in a manner calculated to prevent any such conduct, either by court personnel or by those appearing in court in any capacity. This rule does not preclude legitimate comment or advocacy when… disability… or other similar factors are issues in court proceedings.
Any violation of this policy by any judge… court officer should be reported directly to the presiding judge…"
The Code of Judicial Ethics, Preamble, i.e.:
"…The Code governs the conduct of judges and is binding upon them… Whether disciplinary action is appropriate, and the degree of discipline to be imposed, requires a reasoned application of the text and consideration of such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system."
Code of Judicial Ethics Canon 3(B), i.e.:
"(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon… sex… disability… or socioeconomic status."
"(6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon… disability… against parties… This Canon does not preclude legitimate advocacy when… disability… socioeconomic status or other similar factors are issues in the proceedings."
"(7) A judge shall accord to every person who has a legal interest… full right to be heard according to law.
California Rules of Court, Rule 989.3, Administrative Office of the Courts, Questions and Answers on Rule of Court 989.3, i.e.:
"8. May the Court Summarily Deny the Request? Ignoring or summarily denying requests is inappropriate under the rule."
Plaintiff requests that the Court disclose all grounds for sanctions to disabuse plaintiff of her concerns and to free her from the chilling of her rights that the Court’s ruling has provoked.
Judge Moore ruled in Wells properties v. Popkin (1992) 9 Cal.App.4th 1053:
"The imposition of sanctions is a serious matter warranted only in the clearest of cases in order to penalize the most egregious misconduct. Any other approach might chill litigants’ valid assertion of their rights. [Weisman v. Bower (1987) 193 Cal.App.3d 1231]. In Bach v. McNelis (1989) 207 Cal.App.3d 852, the court noted several policy guidelines regarding imposition of sanctions…' (c) sanctions should be used sparingly in the clearest of cases to deter the most egregious conduct.’"
H. The Court Failed to Fulfill Its Disciplinary Responsibilities By Ignoring Evidence of Defendants’ Attorneys Violations of the Rules of Professional Conduct
The Code of Judicial Ethics, Canon No. 3, D. Disciplinary Responsibilities states:
"(2) Whenever a judge has personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action."
Plaintiff’s Motion provides facts and allegations regarding defendants’ attorneys' violation of the Rules of Professional Conduct, which the Court ignored and defendant’s attorneys did not dispute. (Plaintiff’s Motion, p.5, lines 17-28, pp.6-13, Plaintiff’s Exhibits Nos. 1, 2, 3. Plaintiff’s Reply p.2, lines 6-28, p.3, lines 1-10, p.4, lines 8-28, p.5, lines 1-10, p.6, lines 11-28, pp.7-8, Plaintiff’s Declaration in Support of Reply and Plaintiff’s Supplemental Declaration.
California Penal Code § 118(a) states in part that every person who willfully declares "as true any material matter which he or she knows to be false... is guilty of perjury…"
Judge Seymour stated in stated in [In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214]:
"The whole point of permitting a declaration under penalty of perjury, in lieu of a sworn statement, it to ensure that declarations contain a truthful factual representation and are made in good faith. (Ancora- Citronelle v. Green (1974) 41 Cal.App.3d.146, 148) ‘The oath or declaration must be in such form that criminal sanctions of perjury might apply where material facts so declared to be true, are in fact not true or are known to be not true.’ (Id. at p.150; See Pen. Code § 118)."
Judge Seymour found that the trial judge’s misconduct by threats of "even more sanctions on appeal" for having sought sanctions against an attorney’s signing declarations on behalf of others was "improper."
Plaintiff is aware that filing her Motion to Reconsider exposes her to the risk of imposition of additional sanctions by the Court which further chills her exercise of the right to petition. The Court ignored plaintiff’s request for sanctions for defendant’s abuse of the discovery process, as well as for material false statements to plaintiff in correspondence and to the Court in pleadings and declarations.
Business & Professions Code § 6068 states it is an attorney’s duty "(e) To counsel or maintain such actions, proceedings, or defenses only as [9 Cal.App.4th 1060] appear to him or her legal or just…" and "(d) to employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer [Note: plaintiff construes this to mean an In Pro Per attorney] by an artifice or false statement of fact or law."
Further, the Rules of Professional Conduct require that a member of the State Bar "shall not seek to mislead the judge, judicial offices, or jury by an artifice or false statement of fact or law." (Rules of Professional Conduct, Rule 5-200(B).) "Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice." (emphasis supplied) Furlong v. White (1921) 51 Cal. App. 265, 271 [196 p.903]
I. The Court Has Ignored Its Own Prior Ruling and Federal/State Controlling Legal Authorities as a Pretext to Wrongfully Deny Plaintiff's Rights to Discovery, Protective Order, and Order for Imposition of Sanctions Re: Coercive and Unconscionable Acts and Contracts
The Court's February 20, 2003 Ruling specifically identified that plaintiff's allegations of gagging, retaliation, free speech, public policy and her rights under the Knox-Keene Act provided sufficient facts to state a cause of action for breach of contract.
Plaintiff's Motion/Exhibits/Declaration and Reply/Exhibits/Declaration state with particularity the nature of three contracts between defendants and plaintiff. (Plaintiff's Motion p.14, lines 3-22, Exhibit No.1 Attachments, Declaration and Plaintiff's Reply p.5, lines 11-28, pp.6-12)
Plaintiff's Reply states with particularity the nature of contracts between defendants and the health care service plans they regulate that pertain to her statutory right to a second opinion under the Act. (Reply, p.3, lines 11-28, p.4, lines 1-7, p.8, lines 7-28, pp.9-10, Exhibit No.1, Declaration)
Plaintiff's allegations that defendants' secret, ex parte illegal contracts with health plans to render her benefits illusory in violation of her contract and other rights to unjustly enrich defendants and health plans were uncontradicted in defendants' pleadings and ignored by the Court without explanation.
Plaintiff cited California Civil Code § 1668 to justify in part her Order to Compel the Secretary's deposition to discover the particulars of defendants' contracts with health plans regarding her mandated right to a second opinion to prove her breach of contract cause of action and to test the truth of defendants' affirmative defense denying the contract/breach and defendants' Answer denying specific allegations. (Reply, p.8, lines 15-28, p.9, lines 1-18)
Plaintiff's Petition and Memorandum of Points and Authorities/Exhibits alleges that defendants' conspired with Kaiser Health Plan to induce her to form a contract (i.e., establish a physician-patient relationship) under circumstances which deprive her of the exercise of free will and exposed her to harm, which plaintiff refused to form. In retaliation defendants and Kaiser refused to provide the Knox-Keene Act mandated benefit of a second opinion by the specialist of her choice. Defendants reviewed and approved Kaiser's contract with subscribers as part of its mandated duty to license health care service plans. Defendants approved an unconscionable contract as they had made an agreement pursuant to an April 1, 2000 meet and confer process (Plaintiff's Reply, Exhibit No.1) to permit Kaiser to violate the Act including the sections mandating second opinions.
Judge Van Dyke stated in Lewis v. Fahn, 113 Cal.App.2d 95, September 12, 1952:
"…the true doctrine of duress is held to be that a contract… obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress… the question is merely whether the pressure applied did in fact so far affect the individual concerned as to deprive him of contractual volition; if it did, there is duress, if it did not there is none."
The California Supreme Court has noted a general "right… to be free from acts constituting duress" (Leeper v. Beltrami (1959) 53 Cal.2d. 195) and the propriety of a "cause of action for wrongful acts in the nature of duress." "Examples of such wrongful acts include a bad faith threat to breach a contract or a threat to withhold a payment." [Rich Whillock v. Ashton Development, 157 Cal.App.3d at p.1159]
The California Supreme Court held in Tri-Q v. Sta-Hi Corp (1965) 63 Cal.2d. 199, 218:
"There is no doubt that the general rule requires the courts to withhold relief under the terms of an illegal contract or agreement which is violative of public policy. It is also true that when the evidence shows that [a party] in substance seeks to enforce an illegal contract or recover compensation for an illegal act, the court has both the power and duty to ascertain the true facts in order that it may not unwittingly lend its assistance to the consummation or encouragement of what public policy forbids. (emphasis supplied) These rules are intended to prevent the guilty party from reaping the benefit of his wrongful conduct or to protect the public from the future consequences of an illegal contract."
California Civil Code § 1670.5(a) states in part:
"If the Court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract…"
The 9th Circuit U.S. Court of Appeals has struck down three times as unconscionable Circuit City's employment contract's arbitration provision, the most recent decision filed on July 22, 2003, two days prior to the Court's Ruling. All decisions analyzed unconscionable contracts under California Law.
Unconscionability under California contract law, as defined and interpreted by the 9th Circuit and California Supreme Court, controls this Court's Ruling on Plaintiff's Breach of Contract Cause of Action.
The Knox-Keene Act mandates defendant DMHC to license health care service plans.
Under the Act, DMHC requires health plans to submit their contracts with subscribers for review and approval to determine compliance with the Act.
DMHC and Kaiser conspired on or about April 5, 2000 to form an unconscionable, illegal contract to render the benefit of the mandate for a second opinion illusory through a secret meet and confer process. (Plaintiff's Reply p.3, lines 11-28 and p.4 lines 1-7)
Defendant DMHC contributed to the production of and advertised a fraudulent implied in fact contract including its Guide, other documents and conduct to induce patients to rely on DMHC to enforce their right to a second opinion and other rights.
On January 29, 2002 plaintiff, in reliance on the Guide etc., submitted a Request for Assistance (RFA) to defendants Zingale and DMHC to enforce her rights, as Kaiser's contract terms and conditions unconscionably violated her Constitutional and common law rights and California Public Policy.
Defendant DMHC's agent, Nurse Consultant Gallagher made an express oral contract with plaintiff to enforce her rights that was breached.
Plaintiff filed a Petition for Writ of Mandate on October 11, 2002. On February 20, 2002 the Court ruled that plaintiff had pleaded sufficient facts to state a cause of action for breach of contract.
Defendants' pleadings state (without providing evidence) that defendant DMHC entered into a contract with Kaiser for the benefit of plaintiff, the 3rd party beneficiary.
Plaintiff's verified pleadings state that defendants did not disclose the 3rd party contract with Kaiser until after she filed suit and have continued to claim its existence without offering any evidence.
On March 18, 2003 plaintiff sent a written notice of intent to take the deposition of Secretary Maria Contreras-Sweet to discover facts to prove her cause of action.
On April 1, 2003 defendants' Attorney Sturdevant threatened plaintiff with a SLAPP-suit type action if she merely noticed the deposition.
On May 1, 2003 plaintiff filed her Motion for Protective Order, Order to Compel and Order for Imposition of Sanctions.
On June 3, 2003 defendants' filed their Opposition and Request for Sanctions.
On July 24, 2003 the Court ruled that allegations of unconscionable coercion, retaliation, gagging, and violation of public policy are no longer relevant to plaintiff's cause of action for breach of contract, which totally contradicted the Court's February 20, 2003 Ruling, and sanctioned plaintiff for filing her Motion. The Court's ruling neither explained the reasoning nor entertained oral argument.
The Court's encouragement of and support for defendants' conduct which its own prior ruling, California Public Policy and the U.S. and California Constitutions find unconscionable and unenforceable merit reconsideration of its Ruling. The Court's imposition of sanctions, denial of protective order and order to compel are in and of themselves unconscionable.
Pursuant to California Code of Civil Procedure § 1008, plaintiff respectfully requests the Court to reconsider and rescind its July 24, 2003 Ruling.
Plaintiff's Motion to Reconsider sets forth substantial material justification to request the court to grant her Motion for Protective Order, Order to Compel and Order for the Imposition of Sanctions in its entirety, upon disclosure of the Court's findings, if any, re: technical defects in Plaintiff's pleadings at a hearing, resulting in granting plaintiff an appropriate continuance to correct and/or resubmit corrected documents to the Court.
Judge Elia stated in Scott Co. of California v. United States Fidelity (2003), Cal.App.4th:
"…we do not subscribe to the intermediate view that reconsideration is permitted only if it is made on the court's own motion (See e.g., Darling Hall & Rae v. Kritt supra at p.1157, Case v. Lazben Financial Co supra, 99 Cal. App.4th at p.185) [Slip Opn. Page 14] "While we agree with [the Second District,] Division Seven [,] that judicial resources would be wasted if the court could not review and change its interim rulings, we do not see how the manner of bringing erroneous rulings to the court's attention would in any way mitigate that waste. If section 1008 can be said to create an unreasonable impediment to the orderly and effective administration of justice, it can made no difference whether the error is brought to the attention of the court by the parties or by the insight of the judge alone." [Kollender, supra, 98 Cal.App.4th at p.312]
Plaintiff's unwavering commitment to the traditional relationship of trust and communication in the physician-patient relationship (as supported by the U.S. and California Constitutions, the Common Law Doctrine of Informed Consent, and California Public Policy) is a core personal value, recognized by the California Supreme Court as applicable to the rights of prisoners. (Thor)
Each day plaintiff is conscious that the traditional relationship of trust and communication between her doctors and herself from the time she was diagnosed with and paralyzed by polio (exactly 50 years ago this month) at age six and throughout 11 years of constant corrective surgery, enabled her to walk again at age 17.
If plaintiff had been stricken with paralytic polio as a managed care patient under the coercion and duress caused by state approved unconscionable contracts with Kaiser Health Plan and by secret unconscionable contracts between Kaiser and the California Department of Managed Health Care that rendered her benefits illusory, she would not experience the joy in the simple act of putting one foot in front of the other to get where she wants to go… into the courtroom to help all patients, especially those less fortunate than she.
Jacquelyn Finney Date
Plaintiff, In Pro Per
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on August 4, 2003 in Encinitas, CA.
Jacquelyn Finney ___________________________
Declarant, Jacquelyn Finney
Petitioner and Plaintiff,
CALIFORNIA DEPARTMENT OF MANAGED HEALTH CARE; DANIEL ZINGALE, DIRECTOR; ANDREW GEORGE, SENIOR STAFF COUNSEL, HMO HELP CENTER; DOES 1- 100
Respondent and Defendants
Case No.: GIN024734
NOTICE OF MOTION & MOTION OF PLAINTIFF TO RECONSIDER THE COURT’S TELEPHONIC RULING (7/24/2003), DENIAL OF ORAL ARGUMENT REGARDING
MOTION FOR PROTECTIVE ORDER, FOR ORDER TO COMPEL AND FOR IMPOSITION OF SANCTIONS AND FOR ORDER TO SHORTEN TIME FOR HEARING DATE
Date: October 16, 2003
2003 AUG -4 PM 2: 55
NORTH COUNTY DIVISION