1 JOSE DUARTE

2 401 FAIRMOUNT AVE, NO. 311

OAKLAND, CA 94611
3 (510) 306-1380

4 ADVOCATE FOR ELIDIA DUARTE

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8 STATE OF CALIFORNIA MEDI-CAL FAIR HEARINGS OFFICE
9
10 Elidia Duarte, CASE NO. 18102067
Claimant and Petitioner
11 ELIDIA DUARTE’S MOTION TO STRIKE
v. HEARSAY STATEMENTS OR IN THE
12
ALTERNATIVE REQUEST FOR SUBPOENA
13 Alameda County Behavioral Health Care
Services and Alameda County Department HEARING DATE: 09/17/2018
14 of Social Services, and Does 1-50, TIME: 1:00 p.m.
15 Respondents LOCATION: 7751 Edgewater Drive, Oakland, CA
94621
16
17
18 Mrs. Duarte respectfully moves to exclude Exhibit F to respondent County of Alameda’s
19 Statement of the Issues or in the alternative requests a subpoena to compel the attendance at the
20 above hearing of Yvette Katuala, employee of Berkeley Mental Health, 2640 Martin Luther King Jr
21 Way, Berkeley, CA 94704. Mrs. Duarte hereby requests to compel the testimony of Yvette Katuala,

22 because the County of Alameda’s Exhibit F attached to its statement of the issues purports to contain

23 statements by Yvette Katuala. The Exhibit F is an unauthenticated document without a signature, the

24 alleged writer Yvette Katuala is not competent to testify as to events that she did not witness, and her

25 statements are hearsay. (Elidia Duarte decl. ¶7 attached).

26 Relevance. “Relevant evidence” means evidence, including evidence relevant to the

27 credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any

28 disputed fact that is of consequence to the determination of the action. Cal. Evid. Code §210. The

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Motion to Strike or in the alternative request for subpoena
1 rule [FRE 401] uses the phrase “fact that is of consequence to the determination of the action” to
2 describe the kind of fact to which proof may properly be directed. FRE 401 Notes of Advisory
3 Committee on Proposed Rules. “The language is that of California Evidence Code §210; it has the
4 advantage of avoiding the loosely used and ambiguous word ‘material.’” The fact to be proved may
5 be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the
6 determination of the action. Id.
7 The fact to which the evidence is directed need not be in dispute. Id. While situations will
8 arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the
9 ruling should be made on the basis of such considerations as waste of time and undue prejudice (see
10 Rule 403), rather than under any general requirement that evidence is admissible only if directed to
11 matters in dispute. Evidence which is essentially background in nature can scarcely be said to involve
12 disputed matter, yet it is universally offered and admitted as an aid to understanding. Id. Charts,

13 photographs, views of real estate, murder weapons, and many other items of evidence fall in this

14 category. A rule limiting admissibility to evidence directed to a controversial point would invite the

15 exclusion of this helpful evidence, or at least the raising of endless questions over its admission. Id.

16 On 01/02/18, Elidia Duarte appealed the denial of treatment by the County of Alameda and its

17 subcontractor Berkeley Mental Health. On 03/30/18, Elidia Duarte supplemented her appeal against

18 the County by adding the 01/15/18 denial of treatment by the Clínica de la Raza. On 08/18/18, Elidia

19 Duarte supplemented her appeal to include the denial of treatment by the Brighter Beginnings and

20 Family Paths clinics.

21 The issues in this case as of 09/05/2018 include breach of fiduciary duty, fraud, denial of

22 treatment and denial of coordination of benefits for dual Medi-Cal and Medicare QMB beneficiaries;

23 breach of fiduciary duty, fraud, discrimination the basis of language, national origin, medical

24 condition, age, enrollment, insurance coverage; violation of the right to right to timely treatment

25 geographically accessible to her and consistent with her unique needs; violation of the right to choice

26 of providers; violation of the right equality of quality of treatment; violation of the right to parity,

27 elder abuse; violation of substantive due process; and preemption.

28 22 CCR § 50953 indicates that Fair Hearings are governed by the DSS Regulations. The

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Motion to Strike or in the alternative request for subpoena
1 MPP Manual 22-050.2 suggests that the rules of evidence do not apply. However, the DSS
2 pararegulations "General Law Principles" (1101-9), the hearsay rule, incorporates expressly the rules
3 of evidence especially the hearsay exclusionary rule, California Rule of Evidence §1200(a)(1)(out of
4 court statements offered for the truth of the matter are inadmissible). A specific regulation prevails
5 over a general one. Medical Bd. of California v. Superior Court (2001), 88 Cal.App.4th 1001, 1013,
6 review denied. The DSS Parareg 1101-9 is the specific regulation and controls over the general
7 regulation MPP 22-050.2.
8 Moreover, in Ortiz v. Eichler, 794 F.2d 889, 895 (3rd Cir. 1986), the court determined and ruled

9 that the state welfare agency’s practice of considering adverse statements from individuals, who were not

10 available for cross-examination or confrontation at administrative hearings violated federal regulations,

11 guaranteeing the right to confront and cross-examine. (Interpreting 42 C.F.R. § 431.242(e) (1985) and

12 Goldberg v. Kelly, 397 U.S. 254, 267-268 (1970)).

13 All of the requirements from Goldberg v. Kelly must be met: Establish all pertinent facts and

14 circumstances; Present an argument without undue interference; and Question or refute any testimony or

15 evidence, including opportunity to confront and cross-examine adverse witnesses. 42 C.F.R. § 431.205

16 (d) (The hearing system must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254

17 (1970)); compare 10 CCR § 6614 (d)(5)(The appeals entity shall provide the appellant with the

18 opportunity to . . . Question or refute any testimony or evidence, including the opportunity to confront

19 and cross-examine adverse witnesses . . .”) Therefore, the admission of hearsay evidence is a violation of

20 42 C.F.R. §431.205, 10 CCR §6614(d)(5), DSS parareg 1101-9, and due process. Goldberg v. Kelly,

21 397 U.S. at 267-268.

22 Mrs. Duarte consistent with the hearsay rule and the right to question or refute evidence
23 hereby respectfully moves to strike respondent County of Alameda’s Exhibit F attached to its
24 statement of the issues, because the document is unauthenticated without a signature, the alleged
25 writer Yvette Katuala is not competent to testify as to events that she did not witness, and her
26 statements are hearsay. (Elidia Duarte decl. ¶7).

27
28 I. MOTION TO STRIKE

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Motion to Strike or in the alternative request for subpoena
1 The BMH offers Ms. Katuala’s alleged testimony as to an assessment involving Elidia Duarte
2 and someone else, but has not shown that Ms. Katuala has first hand knowledge of the events
3 surrounding any assessment. She is therefore not competent to testify, and that statement should be
4 stricken. FRE 602; Cal. Evid. Code §702(a).
5 Next, the County is offering at least 3 levels of out of court statements by others: what the “ . .
6 . one of our Spanish speaking intake clinicians” purportedly heard Elidia Duarte say. Respondent’s
7 Exhibit F.
8 Mr. Duarte moves to strike the multiple level hearsay statements in Exhibit F because they are
9 not within any exception. "Hearsay evidence" is defined as "evidence of a statement that was made
10 other than by a witness while testifying at the hearing and that is offered to prove the truth of the
11 matter stated." Evid. Code § 1200(a) "Except as provided by law, hearsay evidence is
12 inadmissible." Evid. Code § 1200(b) Multiple level hearsay is inadmissible unless each level is

13 admissible pursuant to a hearsay exception. Shannon v. Superior Court (People) 5 Cal. App. 4th 676,

14 684 (1992). The following are out of court statements:

There was no discussion about being excluded from treatment. Client presented asking for
15 psychotherapy by a Ph.D. from a Spanish speaking psychologist. She refused to participate in
a Mental Health Assessment unless there was a guarantee that her case would be opened and
16
that she would get psychotherapy as described above from BMH. BMH uses the Alameda
17 County Behavioral Health Screening Tool to determine Level Of care.
18 She and her son declined to have a MH Assessment unless BMH would guarantee that at the
19 end of the assessment, she would be opened to BMH to a Spanish speaking Ph.D.
psychotherapist for psychotherapy.
20
The therapist offered to cal ACCESS with the client and her son in the room, but that offer
21 was declined. The client and her son were also offered a list of providers, but that was also
22 refused. The client's son said that many of the contact numbers offered on the Alameda
County Provider referral link are obsolete. He said that none of the Ph.D providers he
23 contacted for his mother spoke Spanish.
24 BMH offered to contact Access with client and her son and to provide the County Provider
25 referral list, but all were refused.

26 The first level of hearsay is what the “Client and her son” allegedly said to “one of our

27 Spanish speaking intake clinicians” It is an out of court statement not within any exception. The

28 second level of hearsay are the notes of the alleged conversation, “There was no discussion…Client

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Motion to Strike or in the alternative request for subpoena
1 presented….She refused . . . She and her son declined . . . The therapist offered . . . He said. . . BMH
2 offered . . . He said . . .” The third level of hearsay is/are the statements made by Katuala to Capece
3 in the 04/24/18 email.
4
OBJECTIONS TO RESPONDEN’S EXHIBIT
5
Material Objected To Grounds for Objection Ruling on the Objection
6
Lacks firsthand knowledge Sustained: _________
1. There was no discussion about being
7 and foundation as she has Overruled:_________
excluded from treatment. Client not shown that she was
8 present during those events.
presented asking for psychotherapy by a Evid. Code sections 402,
9
403.
Ph.D. from a Spanish speaking
10
psychologist. She refused to participate
11
in a Mental Health Assessment unless
12
there was a guarantee that her case
13
would be opened and that she would get
14
psychotherapy as described above from
15
BMH. BMH uses the Alameda County
16
Behavioral Health Screening Tool to
17
determine Level Of care.
18
19
Lacks firsthand knowledge Sustained: _________
20 2. She and her son declined to have a
and foundation as she has Overruled:_________
21 MH Assessment unless BMH not shown that she was
present during those events.
22 would guarantee that at the end of the Evid. Code sections 402,
403.
23 assessment, she would be opened to

24 BMH to a Spanish speaking Ph.D.

25 psychotherapist for psychotherapy.

26
27 Lacks firsthand knowledge Sustained: _________
3. The therapist offered to cal
and foundation as she has Overruled:_________
28 ACCESS with the client and her son not shown that she was

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Motion to Strike or in the alternative request for subpoena
 present during those events.
1 in the room, but that offer was
Evid. Code sections 402,
2 declined. The client and her son 403.

3 were also offered a list of providers, Multiple level hearsay not

within any exception. ."
4 but that was also refused.
Evid. Code § 1200(a), (b)
5
Multiple level hearsay not Sustained: _________
6 4. The client's son said that many of
within any exception. ." Overruled:_________
7 the contact numbers offered on the Evid. Code § 1200(a), (b)

8 Alameda County Provider referral

9 link are obsolete. He said that none
10 of the Ph.D providers he contacted
11 for his mother spoke Spanish.
12 Lacks firsthand knowledge Sustained: _________
5. BMH offered to contact Access
and foundation as she has Overruled:_________
13 with client and her son and to not shown that she was
present during those events.
14 provide the County Provider referral Evid. Code sections 402,
15 403.
list, but all were refused.
16 Multiple level hearsay not
within any exception. ."
17 Evid. Code § 1200(a), (b)
18
19
20 II. REQUEST FOR SUBPOENA

21 Alternatively, for the reasons stated above, Elidia Duarte requests a subpoena to call the

22 alleged writer Yvette Katuala, in order to confront Katuala’s competence and her hearsay statements.

23 Cross-examination of Ms. Katuala will make less likely the County’s defense that cold referrals by

24 BMH are psychotherapy, that Elidia Duarte refused any services, and will impeach the County’s

25 claims, e.g. that “There was no discussion about being excluded from treatment.” By confronting

26 the County’s proffer of hearsay evidence, Elidia Duarte will support her own case of unlawful denial

27 of treatment by the BMH, as indicated by the above issues.

CONCLUSION
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Motion to Strike or in the alternative request for subpoena
1 For the above stated reasons the above statements should be stricken or, in the alternative, a
2 subpoena should issue to compel Ms. Katuala’s appearance and testimony at the 09/17/18 hearing.
3 I swear the above statements are true and accurate to the best of my knowledge and ability at the
4 time that I made them in Berkeley, California.
5
6
7 DATED: September 3, 2018 By: _________________________________
8 JOSE DUARTE
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Motion to Strike or in the alternative request for subpoena
1 CERTIFICATE OF SERVICE
Case #: 18102067
2
Case name: Duarte v. Alameda County Behavioral Health Care Services, Alameda County Department of
3 Social Services, et. al

4 I am a citizen of the United States, over the age of 18 years and am a party to the cause herein. On

5 September 5, 2018, I served, on the interested parties in said cause, by causing an original or true copy

6 thereof to be enclosed in a sealed envelope addressed as follows:

ELIDIA DUARTE’S MOTION TO STRIKE HEARSAY STATEMENTS OR IN THE ALTERNATIVE
7 REQUEST FOR SUBPOENA; DECLARATION OF ELIDIA DUARTE
Karen Capece,
8
Alameda County Behavioral Health Care Services
9 2000 Embarcadero Cove, Suite 400
Oakland, CA 94606
10 (510) 436-9025 (fax)
11
12 x BY MAIL I caused such envelope(s) to be placed in the United States mail,
postage fully prepaid, in accordance with the standard business practices of this
13 office, in the city of Oakland, California.
14 BY PERSONAL DELIVERY: I caused such envelope to be picked up and delivered to the
15 office(s) of the addressee(s) in accordance with the standard business practices of this office,

16 BY OVERNIGHT DELIVERY: I caused such envelope to be delivered to for

delivery to the office(s) of the addressee(s) as listed above the following day in
17 accordance with the standard business practices of this office.
18
X BY FACSIMILE TRANSMISSION: I caused a copy of such document to be sent via
19 facsimile to the office(s) of the addressee(s) as listed above in accordance with the
standard business practices of this office. A true and correct copy of the facsimile
20 confirmation sheet(s) is attached hereto.
21
22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
23 correct and that this declaration was executed on September 5, 2018, in Oakland, California.
24
25
26 _____________________
JOSE DUARTE
27
28

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Motion to Strike or in the alternative request for subpoena