Petitioner and Plaintiff

v.

CALIFORNIA DEPARTMENT OF MANAGED HEALTH CARE; DANIEL ZINGALE, DIRECTOR; ANDREW GEORGE, SENIOR STAFF COUNSEL, HMO HELP CENTER; DOES 1- 100

Respondent and Defendant

I, JACQUELYN 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:

1. "All 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)
   
   
2. "All 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)
   
   
3. Attached hereto as Exhibit No. 2 is a true and accurate copy of the letter I sent to defendants' Attorney Sturdevant in reply to defendants' INSPECTION DEMAND.
   
   
4. 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.
   
   
5. 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.
   
   
6. 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.
   
   
7. Defendants' 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.
   
   
8. Defendants' 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.
   
   
9. Defendants' 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 defendants' demurrer.
   
   
10. Defendants' 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)
    
    
11. 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)
    
    
12. Defendants' 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, 3-6)
    
    
13. 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 chapter."
    "…Samura unquestionably [emphasis supplied] has certain remedies if the Department… fails to discharge its responsibilities under the Knox-Keene Act…"
    
    
14. 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.
    
    
15. Defendants' 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 demands:
    
    "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)
    
    
16. 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.
    
    
17. . 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)
    
    
18. 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 conditions.
    
    
19. Particularly 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)
    
    
20. Defendants' 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.
    
    
21. Contentions 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.
    
    
22. 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.
    
    
23. 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.
    
    
24. 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

RECEIVED

2003 SEP -12 AM 11: 48

NORTH COUNTY DIVISION
SAN DIEGO SUPERIOR COURT