FINNEY, hereby declare as follows:
1. I am the plaintiff In Pro Per in the above-captioned case.
2. Attached hereto as Exhibit No. 1 is a true and accurate copy of defendants'
INSPECTION DEMAND dated September 3, 2003 demanding that I produce:
documents, which constitute, refer to, provide evidence of, or reflect
any or consequence of, any contract between plaintiff and defendants."
(p.1, lines 26-28)
documents, which provide evidence of, refer to or relate to, or
reflect in any manner the negotiation, preparation, creation, drafting,
editing, revising, execution, performance, waiver, modification,
repudiation or breach of any such contract." (Exhibit No. 1,
p.2, lines 1-5)
hereto as Exhibit No. 2 is a true and accurate copy of the letter
I sent to defendants' Attorney Sturdevant in reply to defendants'
- Attached hereto
as Exhibit No. 3 is a true and accurate copy of the home page of
the California Office of the Patient Advocate, which I obtained
on September 10, 2003 from defendant DMHC's home page internet link.
- I make this
declaration in support of my Motion to Reconsider the Court's July
24, 2003 Ruling, submitting new facts to the Court in compliance
with CCP § 1008.
- As of the
date of this declaration, I have not received defendants' opposition
to my Motion to Reconsider. Rather, defendants' Attorney Sturdevant
has served me with an INSPECTION DEMAND to be executed one day after
the Court's scheduled Ruling on October 2, 2003.
INSPECTION DEMAND, viewed in tandem with defendants' Interrogatories,
(Motion for Protective Order, Exhibit No. 3) provides further evidence
in support of my Motion to Reconsider the Court's July 24, 2003
Ruling. Sufficient facts have been pleaded to state a very broad
cause of action, not a narrow cause of action. Defendants demand
the identification and application of the U.S. and California Constitutions,
common law, California Public Policy, and California statutes to
a prodigious array of facts, documents and witnesses.
INSPECTION DEMAND and Interrogatories refer to the production of
evidence regarding numerous contracts between plaintiff and defendants.
Defendants' information demands are very broad, recognizing that
numerous contracts involving multiple parties (including but not
limited to individual agents of the Pacific Business Group on Health
and other individuals acting under color of State law) relate to
my Knox-Keene Act mandated right to a second medical opinion from
the specialist of my choice, California Public Policy, and California
statutes, Common law and the U.S. and California Constitutions.
recognize and are attempting to discover information pertaining
to the Court's February 20, 2003 Ruling that gagging, coercion,
retaliation and violation of public policy are extremely broad,
not narrow, issues which stated a cause of action that overruled
INSPECTION DEMAND and Interrogatories reflect the broad nature of
the Court's February 20, 2003 Ruling and are plainly inconsistent
with and plainly inappropriate to the Court's July 24, 2003 Ruling
that wrongly denies me access to material witnesses and other information
pertaining to my responses to their demands to prove my sole cause
of action. If the Court's July 24, 2003 Ruling is not vacated in
its entirety, the Court will have wrongly assumed facts not in evidence,
virtually deciding my whole case in defendants' favor. Defendants'
attorneys' statements and conduct imply bias and prejudice by this
Court and all California courts.
"We think that no one will dispute the applicability of this
rule [California Code of Civil Procedure § 170] to the trial
of a single action, where during the progress of the trial, the
judge decides a question of fact which amounts virtually to a decision
of the whole case before him." [Kreling v. Superior Court
25 Cal.2d 305 (L.A. No. 19069, In Bank. Nov 28, 1944)
- Indeed, on
August 25, 2003, a California Appeals Court ruled that a trial judge
erred by focusing on a public agency's duty to the plaintiff in
the narrowest of formulations. The Court also ruled that the Agency's
own view of its duty was likewise too narrow. (Durant v. Los
Angeles Unified School District 2003 Cal.App.4th 8-15-03)
INSPECTION DEMAND and Interrogatories reflect their worst nightmare
that a reasonable juror could very well conclude that any unconscionable
term and condition imposed by defendants and Kaiser preventing a
second medical opinion are no different from unconscionable terms
and conditions imposed by all health plans rendering all
benefits illusory in all plans regulated by defendants,
rendering the Knox-Keene Act unenforceable. (Exhibit No. 2, p.2,
- As this Court
cited Samura v. Kaiser Foundation Health Plan in its February
20, 2003 Ruling, this Court also recognized and is bound by that
court of superior jurisdiction's findings that:
"…a Health Plan member could unquestionably [emphasis
supplied] present a strong defense to the enforcement of the provision
on this ground [the Doctrine of Unconscionability]…"
"it is an unfair or fraudulent business practice 'to assert
a contractual right that one does not have.'" (People v.
McKale 25 Cal.3d 626, 635)
"…Health and Safety Code § 1367 sets forth certain requirements
for health care service plans and requires service agreements to
be fair, reasonable, and consistent with the objectives of this
"…Samura unquestionably [emphasis supplied] has certain
remedies if the Department… fails to discharge its responsibilities
under the Knox-Keene Act…"
- Indeed, Judge
Ortega ruled on September 3, 2003 that: "The California Department
of Managed Health Care (the State Agency responsible for oversight
and compliance with the Knox-Keene Act) oversees, examines and approves
agreements in connection with original Plan License Applications…"
(Consumer Cause, Inc v. National "Vision Inc (2003)
Cal.App.4th) Indeed, DMHC's approval of unconscionable health plan
contracts amounts to a diseased tree that cannot be saved. Because
the sickness has infected the trunk, the Court must cut down the
entire tree. The cumulative effect of so much illegality should
prevent any court from supporting defendants' position. The entire
Knox-Keene Act has been rendered unenforceable by defendants' unconscionable
conduct in concert with the health plans they are mandated to regulate.
INSPECTION DEMAND provides additional evidence in support of my
Motion to Reconsider regarding defendants' refusal to meet and confer
and refusal to recognize, much less accommodate my disability. It
"The place of inspection shall be: Office of the Attorney General,
110 West A Street, Room 1100, 11th floor, San Diego, CA, Consumer
Division. The time for such inspection shall be October 3, 2003
at 10:00am." (Exhibit No.1, p.1, lines 21-25)
- On August
11, 2003, Judge Joan Weber sent Attorney Sturdevant a copy of her
letter to me advising defendants of her findings in violation of
my right to submit a confidential complaint regarding bias or prejudice
pursuant to the Court's failure to order defendants to reasonably
accommodate my disability and In Pro Per status. Judge Weber did
not copy Judge Strauss or the Court. As Judge Weber breached confidentiality,
I sent Attorney Sturdevant a copy of my letter to the Presiding
Judge Richard E. L. Strauss dated August 15, 2003. Attorney Sturdevant
also has received and responded to my pleadings regarding my Motion
for Protective Order and Motion to Reconsider. Defendants have refused
to recognize and accommodate my disability and In Pro Per status.
Defendants' continued willful blindness is clear from the terms
and conditions imposed by their INSPECTION DEMAND.
- . Rather than
meet and confer regarding the appropriateness of the INSPECTION
DEMAND, itself, and an appropriate date, time and place, if appropriate,
Attorney Sturdevant has continued to engage in an illegal pattern
of conduct in violation of Local Court Rules, Rules of Professional
Conduct and the Discovery Act to exploit my disability. (Exhibit
No. 2, p.1, 3)
- The date,
time and location are not only inappropriate, they are onerous and
inconvenient for my caregiver and place a heavy, if not impossible,
burden on me to travel to downtown San Diego from a distant suburb,
at a time of day in unpredictable, unsafe and stressful traffic
troubling is defendants' apparent irrational optimism that this
Court "…will continue to ignore evidence proving your intentional
exploitation of my disability and other intentional misconduct…
the clear subtext of statements and conduct by you and Mr. Novello
is that all court rulings have been predetermined to favor the State…"
(Exhibit No. 2, p.1, 6; p. 2, 1-2)
admission, as both conclusions of law and findings of fact, that
they have approved Kaiser's imposition of unconscionable contract
provisions, including prior restraint of speech, upon my doctor-patient
relationships as a condition to receive medical benefits, has violated
my rights and has rendered my health care benefits illusory and
the Knox-Keene Act unconstitutional and unenforceable.
by the Court and defendants that Secretary Contreras-Sweet does
not possess information that can reasonably lead to the discovery
of admissible evidence to prove my cause of action is contradicted
by Exhibit No. 3, in addition to the entire record in this case.
Secretary Contreras-Sweet's photo on the home page of the Office
of the Patient Advocate, which advertises that patients have a "responsibility"
to learn about their "rights" as an HMO health plan member,
identifies her and Governor Davis as possessing such knowledge.
Indeed, Secretary Contreras-Sweet is depicted as acting under the
"inspired leadership of Governor Gray Davis," who may
be recalled on October 7, 2003, causing witnesses to become unavailable
and spoliation of evidence.
- I respectfully
renew my request that the Court hold an in-person hearing. Only
a hearing at which time witnesses will be examined and documents
can be authenticated under oath can test the truth of defendants'
attorneys' statements and can ascertain the factors causing defendants
to ignore and refuse to accommodate my disability, Discovery Act
meet and confer requirements and In Pro Per status. Only a hearing
can test defendants' irrational optimism that all rulings by this
Court and all courts have been predetermined to favor the State.
- I respectfully
request the Court to:
• Vacate its July 24, 2003 Ruling in its entirety.
• Award me the sum of $3,699.00 in legal fees for an excess of 100
hours actually spent by me on my Motion for Protective Order.
• Award me all costs incurred to file my Motions for Protective
Order, Motion to Reconsider, and Applications for Ex Parte Hearings.
• Impose sanctions against defendants for noncompliance with the
discovery process, for submission of false statements to the Court
and for refusal to reasonably accommodate my disability.
• Grant a protective order requiring defendants to comply with the
letter and spirit of California law regarding reasonable accommodation
of my disability, discovery, and In Pro Per status.
• Grant a stay in responding to defendants' 1st Set of Interrogatories
and Inspection Demand until completion of Secretary Contreras-Sweet's
deposition and other related discovery.
• Grant an order that Secretary Maria Contreras-Sweet be compelled
to attend and cooperate at her deposition pursuant to the time,
date and location of formal notice in San Diego County.
• Grant an order that defendants pay all costs associated with the
taking of Secretary Contreras-Sweet's deposition.
- In the alternative,
I respectfully request the Court to stay its July 24, 2003 Ruling
to permit me to file an immediate appeal.
I have read
the foregoing motion and this declaration consisting of three
exhibits, and declare under penalty of perjury under the laws
of the State of California that the foregoing is true and correct.
Executed on this 12th day of September, 2003 at Encinitas, CA.
Jacquelyn Finney, Plaintiff
In Pro Per