response to nchs motion to dismiss

8/9/2019 Response to NCHS Motion to Dismiss

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Alejandro Sanchez615 Townsite DriveVista, CA 92084760-681-4109Plaintiff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Alejandro Sanchez

Plaintiff.

v.

Superior Court of The State of CaliforniaCounty of San Diego North County Division

Civil Filling Clerks CARLOS; TONY; and

MARIE individually as well as in their Officialcapacity; ClerkLynn Arthur individually as well

as in her Official capacity; Clerk ReporterJennifer Starkindividually as well as in herOfficial capacity; Sergeant Thomas Clearyindividually as well as in his Official capacity;Deputy Doug Sanders individually as well as in

his Official capacity; SupervisorNancy Wikoffindividually as well as in her Official capacity.

NCHS supervisorTiffani Mauro; Irma CotaPresident and CEO, Phil Lenowsky ChiefFinancial Officer, Kevin Ellis Chief Medical

Officer of the North County Health Services aPrivate Non Profit Corporation, Board of Directorsof North County Health Services George E. Lopez

Chair, Melissa Brown Board Vice-Chair, DianeSeaberg Secretary, Rick Martinez Treasurer,Adriana Andres-Paulson Immediate Past Chair,Andres Martin Board of Director, Clyde H. BeckJr. Board of Director, Emigdio Lopez-Ramirez

Board of Director, Shohre Zaheri Board of

Director, Walt Steffen Board of Director.NorthCounty Health Services (North County HealthProject Incorporated). and does 1-100

Defendants

))))))

)))))))))))))

)

Case No. 10cv0218 BEN WVGJudge: Hon. Roger T. Benitez

PLAINTIFF'S RESPONSE INOPPOSITION TO NORTH COUNTYHEALTH SERVICES (North CountyHealth Project Inc.) MOTION TODISMISS

Date: April 19, 2010Time: 10:30 a.m.Courtroom: 3 (4th Floor)

Complaint filed: January 28, 2010


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I.

SUBJECT MATTER JURISDICTION RULE 12 (b) (6)

The United States Supreme Court has noted that a complaint cannot be dismissed for failure to

state a claim unless the Plaintiff cannot prove or set facts that would entire him to relief.Jack Clemens V. Del Norte County Unified school District 843 F. Supp. 583, *; 1994 U.S.

Dist. Lexis 792, **; 64 Empl. Prac. Dec. (CCH) P43, 168; 94 daily Journal DAR 2124

A motion to dismiss for failure to state a claim must be denied unless it appears that the

plaintiff can prove no set of facts, which would entitle him or her to relief. [**9] Conley v.

Gibson, 355 U.S. 41, 45-46, 2L. Ed. 2d 80, 78 S. Ct. 99 (1957);Fidelity fin. Corp. v. Fed. Home

Loan Bank of SanFrancisco, 792 F 2d 1432, 1435 (9th

Cir.1986) cert, denied. 479 U.S. 1064, 93

L. Ed. 2d 998 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true

and construed in the light most favorable to the plaintiff. AF.R.Civ.P. 12(b)(6) motion to dismiss

is a challenge to the sufficiency of the pleadings set forth in the complaint. When a federal [*5]

court reviews the sufficiency of a complaint, before the reception of any evidence either by

affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff

will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) ; Gilligan v. Jamco

Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). NL Ind., Inc v. Kaplan, 792 F. 2d 896,

898,(9th

Cir. 1986) Although the court is generally confined to consideration of the allegations in

the pleadings, when the complaint is accompanied by attached documents, such documents are

deemed part of the complaint and may be considered in evaluating the merits of a Rule 12 (b) (6)

motion.Durning v. First Boston Corp., 815 F2d 1265, 1267, (9th

Cir.), Cert. Denied sub nom.

Wyo. Community Dev. Auth. V. Durning, 484 U.S. 944, 98 L. Ed. 2d 358, 108 S. Ct. 330 (1987).

Therefore Plaintiff Alejandro Sanchez will submit attached exhibits in support of the

allegations in this complaint. On any other motion to dismiss under rule 12 (b) (6), the court may

consider matters outside the pleadings, but must accept as true all material allegations of the

complaint and construe the complaint in favor of the plaintiff. See Fed. [**10] R. Civ. P. 12;

Warth v. Seldin, 422 U.S. 490. 501-02, 45 L. Ed. Ed 343, 95 S. Ct. 2197 (1975) 397 F. Supp. 200,


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* ; 1975 U.S. Dist. Lexis 11611,** in Conley v. Gibson, 355 U.S. 41,78 S. Ct.99, 2L. Ed. 2d 80

(1975) in which the Supreme Court state; [**3] [In] appraising the sufficiency of the complaint

we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state

a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of hisclaim which would entitle him to relief.

Based on the complaint, this court at this stage of the proceedings cannot say that plaintiff

will not be able to prove any set of facts that would entitle him to relief. Defendants motion

should therefore be denied. Rule 12(b)(6) motion to dismiss, this court should accept as true the

facts as alleged in the complaint, views them in the light most favorable to the plaintiff, and

recognizes that dismissal is inappropriate "unless it appears to a certainty that the plaintiff would

be entitled to no relief under any state of facts which could be proved in support of his claim. see

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (explaining that dismissal for failure to state a

claim is proper "only if it is clear that no relief could be granted under any set of facts that could

be proved consistent with the allegations").

II.

DEFENDANTS TIFFANI MAURO'S AND KEVIN ELLIS COURSE

OF ACTIONS WERE CONTRARY TO THE LAW

Plaintiff has and will repeat the facts in this document; Plaintiff is a disabled individual

within the meaning of the American with Disabilities Act Public Law 101-336 (42 U.S.C. Sec.

12101 et seq ) and the Californias Unruh Civil Rights Act. The Unruh Civil Rights Act subjects

to liability [w]hoever denies, aids or incites a denial, or makes any discrimination or distinction

contrary to [the Act]. (Civ. Code, 52, subd. (a).) Thus, liability under the Act for denying a

person the full and equal accommodations, advantages, facilities, privileges, or services of a

business establishment (Civ. Code, 51, subd. (b)) extends beyond the business establishment

itself to the business establishments employees responsible for the discriminatory conduct.

The Supreme Court of California affirmed inNorth Coast Women's Care Medical Group Inc. v.

San Diego Superior Court; BenitezS142892/ Ct.App. 4/1 D045438 Filed 8/18/08 stated once

again that a public/private agency cannot deny medical services within the jurisdiction of the State


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of California regardless of their sex, race, color, religion, ancestry, national origin, disability, or

medical condition are entitled to the full and equal accommodations, advantages, facilities,

privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, 51,

former subd. (b), as amended by Stats. 2000, ch. 1049.)Plaintiff Alejandro Sanchez his wife and five children were patients of the North County

Health Services, "NCHS" for on or about fourteen years. Plaintiff had not filed a written

complaint until these current events. After the painting, pharmacy and the HINI vaccine events

Plaintiff filed a written complaint with the North County Health Services complaining about: (a).

NCHS employees were painting in the waiting area while patients were sitting down waiting to be

called to the rooms. (b). Plaintiff complained that he called the pharmacy several times to get the

medication for his children and every time he called the computers were down. (c). Plaintiff

complained that asthmatic or elderly people were not given priority over the HINI immunization.

NCHS sent Plaintiff a letter acknowledging the receipt of his complaints.

Immediately after Plaintiff complained, NCHS Chief Medical OfficerKevin Ellis sent the

letter to Plaintiff in acknowledgement of him complaint. Soon after NCHS defendants retaliated

against Plaintiff and on January 15, 2010 NCHS sent Plaintiff a letter which stated:

Dear, Mr. Sanchez

It is necessary to inform you that North County Health Services can no longerprovide services to you. Over the past several weeks you have been rude and

threatening to several staff members and it now appears that you are inappropriatelyinterested in one or more female staff at NCHS. the staff is concerned for their safety,

as you have been noticed driving around the parking lot at closing time when staff are

leaving. NCHS has filed a restraining order regarding this activity. If you are seen on

NCHS property in the future the police will be called and you will be removed.

We suggest that you find another provider for future medical care and services.

Enclosed please find an authorized form so that your medical records may be released

to health care provider of your choice. Please sign this and designate the name andaddress of your physician and send it back to NCHS medical records department.Once received, a copy of your records will be mailed to your physician.

Sincerely,

Kevin Ellis, D.O.

Chief Medical Officer


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This letter violated the ADA and the Unruh Act because Defendants could not legally deny

him medical services because he complained about the standard of care at the North County

Health Services facilities (Exhibit 1). The statements made in this letter are slanderous

inflammatory lies, crafted with malice and with the intent to destroy Plaintiff Sanchez character,integrity and reputation in the community. Plaintiff Sanchez had been a patient with good

standing for on or about (14) fourteen years. He had not filed any complaints against the NCHS

and as soon as he filed the written complaint about the three issues mentioned above NCHS

resorted to retaliatory, harmful and criminal acts against Plaintiff.

On January 15, 2010 Defendant Tiffani Mauro further violated Plaintiff's civil and statutory

rights by going into the Superior Court for the State of California North County Division and

filing an application for restraining order [WV-1 and WV-120]. The application was filed by

Tiffani Mauro Vice President of Operations for North County Health Services [page 4 of 4 of

WV-100 9 Rv. January 1, 2005].

Defendant Tiffani Mauro Vice President of Operations for North County Health Services filed

the applications on behalf of North County Health Services representing allemployees of North

County Health Services (See Exhibit No. 16). North County Health Services is a 501C3 for Profit

Corporation. Tiffani Mauro is not a licensed attorney in the state of California to practice law and

represent a Corporation. Tiffani Mauro is not a licensed attorney to practice law in the State of

California to represent, employees of a Corporation. The Clerk of the Court for the Superior

Court of California, County of San Diego North County Division acquiesced in the violation by

accepting both [WV-1 and WV-120] application. The documents were entered on January 15,

2010 at 3:12 P.M. On the same day the temporary order for a restraining order was signed and

dated January 15, 2010 by Judge Adrienne A. Orefield .

Judge Orefield ordered North County Health Services to serve the documents on Plaintiff

Sanchez on January 15, 2010. Tiffani Mauro failed to serve the documents as ordered by Judge

Orefield. Instead of serving the documents as order by Judge Orefield Tiffani Mauro states in her

declaration, "after I left the courtroom, I realized that I had attached the (4) four pages of internal

notes to my Application. These notes are confidential business records of NCHS, and I did not


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intended to make them a part of the public record. I requested the sheriff's department not to serve

the documents until I could resolve the issue regarding the four (4) pages of internal notes. On

January 19, 2010 I returned to the Court and requested that the internal notes be returned and not

be made part of the public record. the clerk informed me that I would have to file a motion andhave the issue decided by judge. " (Exhibit 2)

To start, Defendant Mauro showed up to court and presented documents in support of her TRO

to the judge. At no time does the court clerks or the Court note that there is something

fundamentally wrong with the situation. First Defendant Tiffani Mauro shows up and files a TRO

on behalf of a, "CORPORATION, EMPLOYEES of the CORPORATION" along with her minor

son without a license to practice law. Second she submits documents in support of her TRO and

states that these documents are statements of Plaintiff, "conduct" by other employees. Defendant

Tiffani Mauro does not state the conduct which would require the Superior Court to grant her a

Restraining Order against Plaintiff except to claim that, "Mr. Sanchez has been calling the office

frequently and harassing the NCHS employees by reputedly asking for me.1" Yet Defendant

Tiffani Mauro fails to state the dates, time or months of the events. This is important because if

any of these statements were true, Defendant Tiffani Mauro as well as the NCHS would have filed

a police report and would have provided a copy of the video tape to the police and the Superior

Court attached with her declarations.2

Defendant Tiffani Mauro also states in her declaration, "I

saw him driving around in the parking lot outside the building as I was leaving work, and he made

'eye contact' with me. To began she does not state what day or time of this "eye contact" incident.

Then she changes her mind and asks for the records back. Defendant Tiffani Mauro makes no

specific allegations of what type of, "conduct" was threatening to her. Was Plaintiff filing of a

complaint against NCHS threatening to her?3

It appears that Defendant Tiffani Mauro is merely

1See Declaration of Tiffani Mauro page 2 or 3.

2The NCHS has video cameras throughout the facility . As a supervisor she had access to make a

copy of the video tapes. Further the NCHS could have made the tape available to the Superiorcourt.

3California Code of Civil Procedure Section 527.8


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reciting a booklet on how to get a restraining order but makes no mention of any actual acts or

conduct she alleges were threatening to her. Further Defendant Tiffani Mauro submits no facts to

support her allegations of threatening conduct, no video tapes from NCHS office or police reports.

Defendant Mauro states in her declarations, "the clerk informed me that I would have to file amotion and have the issue decided by a judge." Why would the "clerk" not ask Defendant if she

was an attorney to practice law in the state of California or why she was filing on behalf of the

Corporation, employees or her minor son? Why would the Superior Court Clerk not let Defendant

Tiffani Mauro know that she could not give her legal advice and she should consult an attorney?

After this fiasco NCHS Attorney Sandoval makes an appearance and files an ex parte to retrieve

the documents which the Court states are damaging to the, "Corporation" (Exhibit 3).

Attorney Sandoval's Memorandum and declaration which were never sent to Plaintiff Sanchez

nor were they made available to him, the many times he went to the Superior Court to view the

file against him.4

the Memorandum submitted to the Superior Court states that the (4) four

documents were, "memorialize discussions between various staff members about how to address

concerns regarding Defendant." Attorney Sandoval further states, "documents should be returned

because it harbors serious concerns for the safety of its employees should the signed temporary

restraining order and notice of the upcoming notice to show cause....such notes are irrelevantto a

termination on the merits of a request for a temporary restraining order or subsequent injunction."

(2) "Credible threat of violence" is a knowing and willful statement or course of conduct thatwould place a reasonable person in fear for his or her safety, or the safety of his or her immediate

family, and that serves no legitimate purpose.

(3) "Course of conduct" is a pattern of conduct composed of a series of acts over a period of

time, however short, evidencing a continuity of purpose, including following or stalking anemployee to or from the place of work; entering the workplace; following an employee during

hours of employment; making telephone calls to an employee; or sending correspondence to an

employee by any means, including, but not limited to, the use of the public or privatemails, interoffice mail, fax, or computer e-mail.

(c) This section does not permit a court to issue a temporary restraining order or injunction

prohibiting speech or other activities that are constitutionally protected, or otherwise protected

by Section 527.3 or any other provision of law.

4Plaintiff Sanchez finally received a copy of the ex parte memorandum and declarations of

Defendant Tiffani Mauro and NCHS attorney Cynthia Sandoval on or about March 25, 2010.


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Notes and declarations are certainly, "relevant" in determining a cause for a restraining order

(Exhibit 4).5

All documents in this case should have never been sealed, (Exhibit 6) Plaintiff never

had a opportunity to view the records or any moving papers filed against him in Superior Court.

NCHS defendants have made many libelous and egregious defamatory allegations against Plaintiffand sought to file them under seal. Never affording the Plaintiff an opportunity to defend himself

against these allegations which are unknown to him. Defendants have made statements like,

"loitering, hounding, disturbing behavior, inappropriate, rude, threatening...." Yet never

providing a shred of evidence to any of these egregious libelous and unfounded accusations.

NCHS could have provided a copy of the video tape to prove any and all of their allegation,

yet have failed to even provide a copy of a video tape6. In her Declaration NCHS attorney

Sandoval further states that, "it is believed that these employees could be placed in danger should

their identities be disclosed, and they could very well be subjected to the same type of behavior

which resulted in the granting of the present temporary restraining order.....further NCHS will be

prejudiced is the confidential records are disclosed .....The embarrassmentresulting from this

episode could prove damaging to its operations."

III.

ALL DEFENDANTS ARE LIABLE UNDER SUPEVISOR LIABILITY

Defendants, Irma Cota, Phil Lenowsky, Kevin Ellis George E. Lopez, Melissa Brown, Diane

Seaberg, Rick Martinez, Adriana Andres-Paulson, Andres Martin, Clyde H. Beck Jr., Emigdio

Lopez-Ramirez, Shohre Zaheri, Walt Steffen, are personally liable for all the violations committed

in the establishment in which they all hold a supervisor capacity and liability positions.

Therefore under the American with Disabilities Act Public Law 101-336 (42 U.S.C. Sec.

12101 et seq ) and the Californias Unruh Civil Rights Act, the Health Insurance Portability and

Accountability Act (HIPAA) of 1996 (P.L.104-191) [HIPAA], Title VI of the Civil Rights Act

5Memorandum was submitted without a cover sheet, accepted by the Superior Court Clerks.

6NCHS has cameras inside the facility and outside.


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Defendants are all liable.7Hansen 885 F.2d 642, 646, (9

thCir. 1989) U.S. App. Lexus 13906

[*646] Clearly states, On any theory of vicarious liability, SeePembaur v. City of Cincinnati, 475

U.S. 469, 479, 89 L. Ed. 2d 452, 106, S. Ct. 1292 (1986). A supervisor may be liable if there exists

either (1) his or her personal involvement in the constitutional deprivation. Or (2) a sufficientcasual connection between the supervisors wrongful conduct and the constitutional violation.

Thompkins v. Belt828 F. 2d 298, 303,-04 (5th

Cir. 1987) Supervisory liability exists even without

overt personal participation in the offensive act if supervisory officials implement a policy so

deficient that the policy itself is a repudiation of constitutional rights and is the moving force of

the constitutional violations.

Defendants Kevin Ellis, and Tiffani Mauro were personally involved and they both hold

supervisory capacity positions of employment at the NCHS offices. Irma Cota, Phil Lenowsky,

George E. Lopez, Melissa Brown, Diane Seaberg, Rick Martinez, Adriana Andres-Paulson,

Andres Martin, Clyde H. Beck Jr., Emigdio Lopez-Ramirez, Shohre Zaheri, Walt Steffen, are

equally responsible for not creating policies, practices and procedures that would protect the rights

of patients, established the policies aliened with state and federal equal protection laws, establish

policies that would protect patients privacy under HIPAA establish policies to protect the health

and safety of patients. Instead all above named Defendants resorted to egregious and retaliatory

actions which have caused Plaintiff irreparable harm.

Plaintiff Sanchez is very involved in the Community of Townsite Barrio, community members

have a lot of respect for Plaintiff. Community members look up to Plaintiff and seek his advise in

matters of civil rights, education, housing, immigration and other advocacy matters. Plaintiff

Sanchez is very involved in his church and teachers the bible classes to children in the barrio.

Plaintiff Sanchez is a member of DLAC a school district Language Acquisition Committee at the

7The Unruh Civil Rights Act subjects to liability [w]hoever denies, aids or incites a denial, or

makes any discrimination or distinction contrary to [the Act]. (Civ. Code, 52, subd. (a).) Thus,liability under the Act for denying a person the full and equal accommodations, advantages,

facilities, privileges, or services of a business establishment (Civ. Code, 51, subd. (b)) extends

beyond the business establishment itself to the business establishments employees responsible forthe discriminatory conduct.


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Vista Unified School District, he attends and is very active in school board meetings, city of Vista

meetings, he is very involved with his five children's separate schools and is a very respectable

member and fine example for other men in the Townsite Barrio. Plaintiff Sanchez attends various

civic or school meetings almost every night of the week in the afternoon, during the day he meetswith people and is a current daily visitor at the Vista Courthouse and law library. Plaintiff can

account for every day of his where about and what meetings he attended on which day of the

week. Plaintiff Sanchez has always been accompanied by his wife when he visited the NCHS and

most of the time by his daughter Ivonne an adult residing with Plaintiff, his wife and his four

children. E.g. Schwartz v. Snhomish County, Case No. C05-7538P, Slip op. 2006 WL 692024

(W.D. Wash. Mar. 17,2006) in support ofHansen 885 F.2d 642, 646 heightens pleading but E.g.

Schwartz [*11] the Ninth Circuit Court has noted that [s]upervisory liability exists even without

overt personal participation in the offensive act if supervisory officials implement a policy so

deficient that the policy itself is a repudiations of constitutional rights and the moving force is a

constitutional violation.Hansen 885 F.2d 646.

IV.

NORTH COUNTY HEALTH SERVICES AND THEIR AGENTS ARE LIABLE

UNDER THE FOURTEENTH AMENDMENT BECAUSE THEIR

REVENUES ARE GOVENMENT FUNDS.

(Third Cause of action)

A. As explained above under the laws and statutes of the American with Disabilities Act

Public Law 101-336 (42 U.S.C. Sec. 12101 et seq), the Californias Unruh Civil Rights

Act, the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104-

191) [HIPAA], and Title VI of the Civil Rights Act Defendants are all liable.

B. NCHS is not a government entity but they are recipients of public funds, 50% come from

Medical, 22% from programs and grants, 14% from health outreach programs, 8% self

pay, 4% private insurance and 2% miscellaneous.

When a recipient of state and federal funds accepts funds they sign a contractual agreement with

state and federal agencies (charter). One of the conditions of acceptance of state and federal


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grants is the nondiscriminatory provisions, fiduciary duties in the contractual agreement. Even

without the agreement Defendants of NCHS are doing business in the state of California. As the

California Supreme Court clarified in North Coast Women's Care Medical Group Inc. v. San

Diego Superior Court; BenitezS142892/ Ct.App. 4/1 D045438 Filed 8/18/08.

8

"public/private agency cannot deny medical services within the jurisdiction of the State of

California regardless of their sex, race, color, religion, ancestry, national origin, disability, or

medical condition are entitled to the full and equal accommodations, advantages, facilities,

privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, 51,

former subd. (b), as amended by Stats. 2000, ch. 1049.)"

The Statutes mean just what they say Wright and Miller, Federal Practice and Procedure 2948,

at 464-66.

V.

CRIMINAL CONDUCT IS NOT PROTECTED UNDER CALIFORNIA LITIGATION

(Fourth Cause of Action)

Anti-SLAPP Motion "ASM" is not available to a defendant who claims that the plaintiff's cause

of action arises from defendant's protected activity when that activity is illegal as a matter of law

and thus not protected by constitutional government entities and not viewed as free speech and

petition. Flatery v. Mauro (2006) 39 c 4th 299, 320, 46 Cr 3d 606. Communication that that

constituted criminal extortion as a matter of law was not protected activity under Anti-SLAPP

law; whether defendant's conduct was illegal as a matter of law is primary part inquiry in ASM

analysis. Paul for council v. hanyecz(2001) 85 CA 4th 1356, 102 CR2d 864 disapproved on other

grounds Equilan Enters v. Consumer Cause. Inc. 124 CR 2d 507.

8

Relevant in this case, the statutes require business establishments to provide full and equalaccommodations, advantages, facilities, privileges, or services to all persons. For purposes of

the free speech clause, simple obedience to a law that does not require one to convey a verbal orsymbolic message cannot reasonably be seen as a statement of support for the law or its

purpose. Such a rule would, in effect, permit each individual to choose which laws he would obey

merely by declaring his agreement or opposition. (CatholicCharities,supra, 32 Cal.4th at pp.558-559.)


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Certainly not even Defendants can believe their actions were within the boundaries of the law.

After Plaintiff sent a letter to NCHS and complained about (a). NCHS staff painting the waiting

area while his asthmatic children and other patients were sitting waiting to be called.

(b). Pharmacy's computer always down and medications not being dispensed. (c). That asthmaticand elderly were not given priority for the HINI vaccine.

Kevin Ellis, D.O. Chief Medical Officer retaliated against Plaintiff First Amendment Right to

complain (free speech) by sending him a letter informing Plaintiff that NCHS, "can no longer

provide services to you..." Further accusing Plaintiff of being rude and threateningand having

inappropriate conduct and interest in female NCHS staff..."

In Gadant v. City of Carson (2005) 128 C4th 705, 27 CR 3d 318. The Court found that a

Plaintiff who alleged that she was defamed by false statements in connection with wrongful

termination established through declarations probability of success on a defamation claim.

NCHS, Kevin Ellis, D.O. Chief Medical Officer further actions became more egregious when

Defendant Tiffani Mauro took the libel accusations against Plaintiff to Superior Court and filed

for a TRO on behalf of the Corporation, on behalf of the employees of the Corporation and on

Behalf of her son without a license to practice law in the state of California in furtherance of their

illegal acts against plaintiff and violations of his rights under American with Disabilities Act

Public Law 101-336 (42 U.S.C. Sec. 12101 et seq), the Californias Unruh Civil Rights Act, the

Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104- 191) [HIPAA]9,

and Title VI of the Civil Rights Act. Plaintiff Sanchez has shown probability of success on the

claims brought against the NCHS and its named Defendants because his allegations are true and

can be proven by the declarations and exhibits in submission to this Court. Wilbanks v. Wolk

(2004) 121 C 4TH 883, 17 CR 3 497. "Sufficient evidence presented to establish prima facie

claim for statutory damages under pen C 632.7 based on news broadcast using improper secret

recordings." Navellier v. Sletten (2002) 29 C4th 82, 92, 124, CR 2d 530) the focus of Anti-

SLAPP " is not the form of the Plaintiff's cause of action but, rather, the defendant's activity that

gives rise to his or her asserted liability-and whether that activity constitutes protected speech of


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petitioning" (see Leegin Creative Leather Prods. Inc. v. Diaz (2005) 131 CA 4th 1517, 33 CR 3d.

139 (fraudulent workers compensation claim). Therefore, this Court must find that NCHS

defendants activities and conduct were illegal and not within the protection of free speech or

litigation privilege.VI.

PLAINTIFF HARRASMENT AND RETALIATION CLAIMS ARE VADID CLAIMS

(Fifth Cause of Action)

Defendants reliance on Scripps Clinic v. Superior Court, 108 Ca. App. 4th 917 (2003) is

misguided for these reasons:

First: Scripps clinic as a private clinic has a contractual agreement with Health Net PPG.

Health Net PPG Operations Manual, which governs the contractualrelationship between Scripps

and Health Net, stated that a patient may be terminated for one instance of the following behavior:

fraud, disruptive or abusive behavior, dangerous behavior, and receipt of a notice of intent to sue.

Patient Thompson sued Scripps and Scripps terminated her. To start with NCHS is a private, non-

profit organization that provides primary health care services to the underserved in North County

San Diego County10

even by Defendants own accounts (see Tiffani Mauro Declaration).

NCHS is a recipients of public funds, 50% come from Medical, 22% from programs and

grants, 14% from health outreach programs, 8% self pay, 4% private insurance and 2%

miscellaneous. On 4% of NCHS revenues come from private insurance. Since over 86% of

NCHS revenues come from federal funds (Exhibit 6 ) NCHS has a contractual agreement with

the United States Department of Human Services, The Joint Commission on Accreditation of

Healthcare Organizations, Centers for Medicare & Medicaid Services (CMS), Tri City Medical

Center, Scripps Hospital, Palomar Hospital and other agencies. All of these regulatory agencies

require NCHS to adhere to state and federal anti-discrimination, anti-retaliation, anti-harassment

9Defendant Tiffani Mauro used Plaintiff medical records in the application for TRO without

Plaintiff's consent knowledge or authorization.10See Tiffani Mauro's Declaration


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and a strong prohibition against patient dumping11

. NCHS is viewed as a clinic of last resort to

many Medical, Medicare, self pay, and uninsured. NCHS is not a private lucrative clinic and it

does not have contractual agreements with private insurance like Scripps but rather public

contracts.Second: North Coast Women's Care Medical Group Inc. v. San Diego Superior Court;

BenitezS142892/ Ct.App. 4/1 D045438 Filed 8/18/08 supersedes Scripps v. Superior Court 108

Ca. App. 4th 917 (2003). In North Coast Women's Care Medical Group Inc the California

Supreme Court clarified that patient dumping even in a private clinic under private insurance

contracts was unacceptable and illegal in violation of the Californias Unruh Civil Rights Act.

NCHS retaliated by drummed up charges of disruptive and inappropriate behavior against Plaintiff

Sanchez for complaining about the paint, pharmacy, and HINI immunizations. Harassing and

defaming Plaintiff even to go as far as going into Superior Court and made those charges public

and with the intent to cause Plaintiff Sanchez irreparable harm.

VII.

PLAINTIFF HAS A RIGHT OF ACTION UNDER THE ADA

Title II Of The American With Disability Act 42 U.S.C. 1213, 12132, 12132 :

(Sixth Cause of Action)

42 U.S.C. 12131. Definitions (2) Qualified individual with adisability

The term qualified individual with a disability means an individual with a disability who,

with or without reasonable modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or the provision of auxiliary aids and

11North Coast Women's Care Medical Group Inc. v. San Diego Superior Court; BenitezS142892/

Ct.App. 4/1 D045438 Filed 8/18/08 stated once again that a public/private agency cannot denymedical services within the jurisdiction of the State of California regardless of their sex, race,

color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and

equal accommodations, advantages, facilities, privileges, or services in all business establishmentsof every kind whatsoever. (Civ. Code, 51, former subd. (b), as amended by Stats. 2000, ch.

1049.) American with Disabilities Act Public Law 101-336 (42 U.S.C. Sec. 12101 et seq), the

Californias Unruh Civil Rights Act, the Health Insurance Portability and Accountability Act(HIPAA) of 1996 (P.L.104- 191) [HIPAA]


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services, meets the essential eligibility requirements for the receipt of services or the participation

in programs or activities provided by a public entity.

42 U.S.C. 12132. Discrimination

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any such

entity.

42 U.S.C. 12133. Enforcement

The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies,

procedures, and rights this subchapter provides to any person alleging discrimination on the basis

of disability in violation of section 12132 of this title.

One again since, NCHS is a recipients of public funds, 50% come from Medical, 22% from

programs and grants, 14% from health outreach programs, 8% self pay, 4% private insurance

and 2% miscellaneous. On 4% of NCHS revenues come from private insurance. Since over 86%

of NCHS revenues come from federal funds. NCHS has a contractual agreement with the United

States Department of Human Services, The Joint Commission on Accreditation of Healthcare

Organizations, Centers for Medicare & Medicaid Services (CMS), Tri City Medical Center,

Scripps Hospital, Palomar Hospital and other agencies. All of these regulatory agencies require

NCHS to adhere to state and federal anti-discrimination, anti-retaliation, anti-harassment and a

strong prohibition against patient dumping. NCHS dumped, discriminated, retaliated and defamed

Plaintiff with egregious accusations of inappropriate conduct, stocking NCHS employees because

Plaintiff complained about the (a). Paint (b). pharmacy and (c). HINI vaccine. In violation of

American with Disabilities Act Public Law 101-336 (42 U.S.C. Sec. 12101 et seq), the

Californias Unruh Civil Rights Act, the Health Insurance Portability and Accountability Act

(HIPAA) of 1996 (P.L.104- 191) [HIPAA].

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court documents for public publication and view has caused Plaintiff irreparable harm to his

character and has caused grievous stress, loss of sleep, and embarrassment. Plaintiff had a fight to

complain and file a written complaint to NCHS administration.

X.CONCLUSION

Plaintiff Sanchez hereby requests that this court deny NCHS motion to dismiss in its entirety.

Further that the punitive damages are necessary because NCHS Defendants knew and should have

known of that when they signed to contractual agreement to receive 86% of their revenues in

federal funds they also signed a contractual agreement with the federal government to create

strong anti-discrimination, anti-retaliation, anti-harassment policies, practices and procedures.

Further, a complaint procedure policy, with instructions and forms as required by federal law.

NCHS arrogance in claiming that they are a private agency and they don't have to comply with

state and federal regulations is silly at best and dangerous for patient care and safety.

North Coast Women's Care Medical Group Inc. v. San Diego Superior Court; BenitezS142892/

Ct.App. 4/1 D045438 Filed 8/18/08 stated once again that a public/private agency cannot deny

medical services within the jurisdiction of the State of California regardless of their sex, race,

color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and

equal accommodations, advantages, facilities, privileges, or services in all business establishments

of every kind whatsoever. (Civ. Code, 51, former subd. (b), as amended by Stats. 2000, ch.

1049.) American with Disabilities Act Public Law 101-336 (42 U.S.C. Sec. 12101 et seq), the

Californias Unruh Civil Rights Act, the Health Insurance Portability and Accountability Act

(HIPAA) of 1996 (P.L.104- 191) [HIPAA].

Dated: March 31, 2010

__________________

Alejandro Sanchez

response to nchs motion to dismiss

Documents