Preview
1 ROB BONTA
Exempt from Filing Fees Pursuant to
Attorney General of California
2 MARISA KIRSCHENBAUER
Government Code §6103
Supervising Deputy Attorney General
3 THEODORE G. LEE
Deputy Attorney General
4 State Bar No. 340700
455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004
Telephone: (415) 229-0111
6 Fax: (415) 703-5843
E-mail: Theodore.Lee@doj.ca.gov
7 Attorneys for Defendant
L. Martine
8 z
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF MONTEREY
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14 GILDARDO SANCHEZ, Case No. 23CV000277
15 Plaintiff, NOTICE AND DEMURRER TO
COMPLAINT;
16 v.
MEMORANDUM OF POINTS AND
17 AUTHORITIES IN SUPPORT OF
DEMURRER
18 L. MARTINEZ, Warden,
Date: May 12, 2023
19 Defendant. Time: 08:30 a.m.
Dept: 13A
20 Judge: The Honorable Vanessa W. Vallarta
Action Filed: January 27, 2023
21
22 TO THE COURT AND PLAINTIFF GILDARDO SANCHEZ, PRO SE:
23 PLEASE TAKE NOTICE that Defendant L. Martinez will demur to the Complaint in its
24 entirety. The demurrer hearing will take place on May 12, 2023 at 08:30 a.m., before the
25 Honorable Vanessa W. Vallarta in Department 13A of the Superior Court for the County of
26 Monterey, located at 1200 Aguajito Road, Monterey, California 93940.
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 Defendant will demur on the following grounds:
2 1. Plaintiff’s failure to comply with the California Government Claims Act prior to
3 commencing this action bars the Complaint’s sole cause of action for negligence. (Gov. Code §§
4 905.2, 910, 945.4, 950.2, 950.6.)
5 2. The Complaint fails to allege sufficient facts to state a cause of action for negligence
6 because Defendant lawfully and correctly deducted money from Plaintiff’s trust account to pay
7 for court-ordered restitution. (Penal Code §§ 1202.4, 2085.5; Cal. Code Regs., tit. 15, § 3097,
8 subd. (c).)
9
10 The parties are exempt from having to meet and confer prior to Defendant filing this
11 demurrer under Code of Civil Procedure section 430.41, subdivision (d)(1). Defendant requests to
12 remotely appear, through counsel, under California Rules of Court section 3.672 and Court
13 Access and Administration Local Rule 1.8, subdivision (C)(1)(A).
14 The demurrer will be based on this notice of demurrer and demurrer, the accompanying
15 memorandum of points and authorities, the request for judicial notice and exhibits attached
16 thereto, and the court’s files in this matter.
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18 Dated: April 14, 2023 Respectfully submitted,
19 ROB BONTA
Attorney General of California
20 MARISA KIRSCHENBAUER
Supervising Deputy Attorney General
21
22
23 /s/ Theodore Lee
THEODORE G. LEE
24 Deputy Attorney General
Attorneys for Defendant L. Martinez
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SF2023400669
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 INTRODUCTION
3 Plaintiff is a state prisoner who alleges that Defendant improperly deducted funds from his
4 inmate trust account to pay Plaintiff’s outstanding restitution. Plaintiff’s negligence claim against
5 Defendant fails because he did not comply with the Government Claims Act prior to commencing
6 this lawsuit and because he does not allege sufficient facts to state a cause of action. Moreover,
7 Defendant is entitled to numerous immunities under the law against the claim. Plaintiff cannot
8 recover relief against Defendant here and the Court should sustain this demurrer with prejudice.
9 PLAINTIFF’S ALLEGATIONS
10 Plaintiff is a state prisoner incarcerated at Correctional Training Facility (CTF). (Complaint
11 [Compl.] at p. 7.) Defendant is the CTF Warden. (Id.) Plaintiff alleges he received $1,400 in his
12 federal stimulus check, from which CTF deducted $770 for “exempt fines and fees.” (Id.)
13 According to Plaintiff, California Governor Newsom “issued Executive Order # N-57-20,
14 specifically making stimulus checks exempt from deductions from prison officials for court fees,
15 legal mail, copy, restitution, debts, without need for further order.” (Id.) Plaintiff asserts he
16 exhausted the government claims process because he did not receive a response within forty-five
17 days after he submitted his claim. (Id. at p. 8 [citing Gov. Code § 912.4].)
18 Plaintiff states he suffered mental distress due to the alleged “unlawful collection funds”
19 from his inmate trust account. (Compl. at p. 8.) For relief, Plaintiff seeks $100,000 in damages
20 and costs. (Id. at pp. 4, 9.)
21 STANDARD ON DEMURRER
22 A party may object to a complaint in its entirety or to any of its causes of action. (Code Civ.
23 Proc., § 430.50, subd. (a).) A demurrer tests the legal sufficiency of factual allegations in a
24 complaint. (Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39, 42.) In reviewing
25 the sufficiency of a complaint against a general demurrer, the court accepts the truth of all well-
26 pleaded facts but need not accept contentions, deductions, or conclusions of law or fact. (Blank v.
27 Kirwan (1985) 39 Cal.3d 311, 318.) The court also accepts as true the contents of any exhibits
28 attached to the complaint, and the contents of an incorporated document will take precedence
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 over and supersede any inconsistent or contrary allegations set out in the pleading. (Building
2 Permit Consultants, Inc. v. Mazur (2004) 122 Cal. App. 4th 1400, 1409). The court may also
3 consider matters outside the pleading that are judicially noticeable. (Blank v. Kirwan, supra, 39
4 Cal.3d at p. 318.)
5 ARGUMENT
6 The Court should sustain this demurrer with prejudice. First, Plaintiff has not complied with
7 the Government Claims Act, for which he has no valid excuse and cannot cure. Second, Plaintiff
8 does not allege sufficient facts to state a cause of action for negligence against Defendant. Third,
9 statutory immunities bar Plaintiff’s claim and Plaintiff alleges no facts to overcome them.
10 Plaintiff’s claim cannot proceed any further and the Court should dismiss it with prejudice.
11 I. PLAINTIFF DID NOT COMPLY WITH THE GOVERNMENT CLAIMS ACT.
12 Plaintiff’s suit cannot proceed because he did not comply with the Government Claims Act.
13 Given Plaintiff’s failure to satisfy a condition precedent to this suit, the law procedurally bars
14 Plaintiff’s negligence claim. Hence, sustaining this demurrer is appropriate and necessary.
15 “Some inmate lawsuits alleging state law claims against prison officials are subject to the
16 claim presentation requirements of the Government Claims Act.” (Foster v. Sexton (2021) 61
17 Cal.App.5th 998, 1021.) “[W]hen a cause of action falls within the scope of the Government
18 Claims Act, submission of a claim is a condition precedent to maintaining a tort action and
19 compliance is treated as an essential element of the cause of action that must be pleaded.” (Id. at
20 pp. 1021–1022 [citing State of Cal. v. Superior Court (2004) 32 Cal.4th 1234, 1239–1240].)
21 “Despite other administrative remedies that may be available, prisoners have an independent
22 ‘obligation to comply with the Government Claims Act.’” (Id. at p. 1022 [quoting Parthemore v.
23 Col (2013) 221 Cal.App.4th 1372, 1382].) A claim for money or damages falls under the scope of
24 the Government Claims Act. (See id. at p. 1022 [citing Gov. Code § 905.2, subd. (b)].)
25 Plaintiff filed a government claim form on October 23, 2022. (Compl. at pp. 12–14.) This
26 did not comply with the Government Claims Act in several respects. First, there is no proof that
27 the Department of General Services rejected Plaintiff’s claim. The law made clear that when “a
28 written claim for money or damages for injury has been presented,” a cause of action for “such
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 injury may not be maintained against the public employee . . . until the claim has been rejected, or
2 has been deemed to have been rejected, in whole or in part by the public entity.” (Gov. Code §
3 950.6, subd. (a).) Here, Plaintiff offers nothing to show that the Department rejected his October
4 2022 claim. (See generally Compl.)
5 Second, Plaintiff’s attempt to deem his claim as rejected is erroneous. Plaintiff contends
6 that he complied with the government claims process because he did not receive a response
7 within forty-five days, citing Government Code section 912.4. (See Compl. at 8.) That section
8 requires the Department to act on a claim “within 45 days after the claim has been presented.”
9 The key word here is “presented,” which requires paying a $25 filing fee or requesting a fee
10 waiver with the necessary supporting documents at the time of filing. (See Gov. Code § 905.2,
11 subd. (c)-(d).) In other words, if Plaintiff did not submit his October 2022 claim either with the
12 filing fee or with a proper fee waiver request, he did not “present” his claim to the Department.
13 And this is exactly what happened. (See Request for Judicial Notice (RJN) Exhibit 1 at 2.)
14 Moreover, Plaintiff’s failure to pay the filing fee or request a fee waiver is inexcusable
15 considering that Plaintiff had notice that failing to provide all the requisite information “may
16 result in denial of filing fee waiver request.” (Compl. at 15.)
17 Third, the October 2022 grievance did not substantially comply with the Government
18 Claims Act. The Act’s purpose is to “‘provide the public entity sufficient information to enable it
19 to adequately investigate claims and to settle them, if appropriate, without the expense of
20 litigation.’” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738 [quoting City of San
21 Jose v. Superior Court (1974) 12 Cal.3d 447, 455].) Doing so requires presenting a claim that
22 “‘contains the information required by section 910 . . . .’” (Simms v. Bear Valley Community
23 Healthcare Dist. (2022) 80 Cal.App.5th 391, 400 [quoting Phillips v. Desert Hospital
24 Dist. (1989) 49 Cal.3d 699, 707].) Moreover, a failure to substantially comply with section 910 is
25 excusable if a claim “put the public entity on notice both that the claimant is attempting to file a
26 valid claim and that litigation will result if the matter is not resolved.” (Del Real v. City of
27 Riverside (2002) 95 Cal.App.4th 761, 769 [citations]. Yet, Plaintiff’s government claim did not
28 meet this low threshold because it did not name Defendant, specify the date that Defendant
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 deducted the funds at issue, or the computation basis for the requested $100,000, all of which
2 Government Code section 910 required.1 (See Compl. at pp. 12–14.) Thus, the October 2022
3 claim’s omission of critical information neither constituted a valid claim nor reasonably put the
4 Department on notice that failing to settle the claim would result in Plaintiff’s litigation against
5 Defendant. And Plaintiff cannot excuse his omission of the essential facts because filing the
6 October 2022 claim demonstrated his familiarity with the relevant statutory requirements.
7 (Cf. Hunter v. Los Angeles County (1968) 262 Cal.App.2d 820, 822.)
8 Plaintiff failed to comply with the Government Claims Act when he commenced this suit
9 without obtaining a denial of his October 2022 government claim, which he did not properly
10 present. Accordingly, the law procedurally bars Plaintiff’s negligence claim against Defendant
11 from proceeding on the merits. The Court should sustain this demurrer and dismiss the claim with
12 prejudice.
13 II. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION FOR NEGLIGENCE.
14 Plaintiff’s suit also fails because he did not allege sufficient facts to state a cause of action
15 for negligence against Defendant. Namely, Defendant’s alleged deduction of Plaintiff’s funds did
16 not breach any duty owed to Plaintiff. That failure justifies sustaining this demurrer.
17 The elements of a negligence claim are (1) defendant’s legal duty owed to plaintiff, (2) a
18 breach of said duty, (3) proximate causation, and (4) damages or injuries. (See, e.g., Ladd v.
19 County of San Mateo (1996) 12 Cal.4th 913, 917–918 [citation].) Negligent infliction of
20 emotional distress “‘is not an independent tort but the tort of negligence . . . .’” (Marlene F. v.
21 Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [emphasis in original]
22 1
A claim shall be presented by the claimant or by a person acting on his or her behalf and
shall show all of the following:
23 ....
24 (c) The date, place and other circumstances of the occurrence or transaction which gave
rise to the claim asserted.
25 (d) A general description of the indebtedness, obligation, injury, damage or loss incurred
so far as it may be known at the time of presentation of the claim.
26 (e) The name or names of the public employee or employees causing the injury, damage,
or loss, if known.
27 (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date
of presentation of the claim . . . together with the basis of computation of the amount claimed.
28
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 [omission in original] [citation].) “‘Whether a defendant owes a duty of care . . . depends upon the
2 foreseeability of the risk and upon a weighing of policy considerations for and against imposition
3 of liability.’” (Id. [quoting Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d
4 1236, 1249].) “In order to limit the otherwise potential infinite liability which would follow every
5 negligent act, the law of torts holds defendant amenable only for injuries to others which to
6 defendant at the time were reasonably foreseeable.” (Dillon v. Legg (1968) 441 P.2d 912, 919.)
7 The Complaint fails to allege sufficient facts to state a cause of action for negligence here.
8 First, Defendant did not owe any duty to not deduct the funds at issue here. To start, the injury
9 that Plaintiff alleges was not reasonably foreseeable. Plaintiff claims he “suffered mental distress
10 due to unlawful collection of funds out of account.” (Compl. at p 8.) But he offers no factual
11 details on why said collection caused him mental distress. Further, the deduction of funds from
12 inmates’ trust accounts to pay court-ordered restitution or restitution fines is one of the state
13 prison system’s regularly conducted businesses. (See Cal. Code Regs., tit. 15, § 3097.) Defendant
14 therefore could not reasonably foresee that conducting a regular activity would suddenly cause
15 some new or novel harm to Plaintiff. (Cf. Kiseskey v. Carpetners’ Trust for So. Cal. (1983) 144
16 Cal.App.3d 222, 231 [“It is clear that a mere monetary or transitory emotional distress is
17 insufficient to constitute severe emotional distress.”].)
18 Policy considerations also weigh against finding that Defendant owed any duty to Plaintiff
19 here. Although the state law imposes certain express duties on Defendant in his role as a warden,
20 none imposes a duty to prevent or mitigate an incorrect deduction of funds from inmates’ trust
21 accounts. (See Pen. Code §§ 2087, 2901, 3700, 3701, 4007, 5056.) And while one of Defendant’s
22 duties may be directing “the business and financial affairs of the institution,” this is unlikely owed
23 to Plaintiff or other inmates, given Defendant is to do so “in accordance with sound fiscal
24 principles and directions from Central Regional Accounting.” (Compl. at 20.) This is a sensible
25 interpretation considering Defendant is Correctional Training Facility’s “chief executive officer”
26 who must “establish such operational plans and procedures as required by the Secretary for
27 implementation of regulations and as may otherwise be required for their respective operations.”
28 (Cal. Code Regs., tit. 15, § 3380, subd. (a), (c).) That Plaintiff identifies no authority imposing the
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 duty at issue here on Defendant also favors concluding that Defendant did not owe a legal duty to
2 ensure that no Correctional Training Facility staff deducted funds from Plaintiff’s stimulus
3 checks.
4 Second, even if Defendant owed a duty to Plaintiff, no breach occurred. Plaintiff contends
5 two executive orders—N-57-20 and N-04-22—exempted Plaintiff’s stimulus checks from a
6 deduction for restitution purposes. (Compl. at p. 8.) This is incorrect because the exemption
7 provided in the executive orders “did not apply to any attachment, levy, execution, or
8 garnishment in connection with any action for, or any judgment awarding . . . any criminal
9 restitution payable to victims.” (Governor’s Exec. Order No. N-57-20 at p. 2, ¶ 3 (Apr. 23, 2020);
10 see also Governor’s Exec. Order No. N-04-22 at p. 2, ¶ 12(c) (Feb. 25, 2022) [extending Exec.
11 Order No. N-57-20 to March 31, 2022].) Plaintiff acknowledges that Correctional Training
12 Facility deducted funds for restitution purposes. (Compl. at 17.) Plaintiff’s own allegation thus
13 settles that Defendant could have not breached any duty owed to Plaintiff because the deduction
14 would have been proper under the two executive orders and the relevant state regulations. (See,
15 e.g., Cal. Code Regs., tit. 15, § 3097.) Finally, the executive order explicitly held that it did not
16 “create any rights or benefits, substantive or procedural, enforceable at law or in equity, against
17 the State of California, its agencies, departments, entities, officers, employees, or any other
18 person.” (Governor’s Exec. Order No. N-57-20 at p. 2.) This text confirms that Plaintiff never had
19 any right or duty under the executive order that Defendant could even breach.
20 Plaintiff’s allegations in the Complaint are insufficient to state a cause of action for
21 negligence. In particular, Plaintiff does not sufficiently allege facts on what duty Defendant owed
22 to Plaintiff here or how Defendant breached such a duty. Accordingly, sustaining this demurrer is
23 appropriate and necessary.
24 III. STATUTORY IMMUNITIES BAR PLAINTIFF’S CLAIM.
25 Finally, various statutory immunities shield Defendant from liability. Plaintiff does not
26 allege facts that invalidate those immunities. Therefore, Plaintiff’s claim cannot proceed and the
27 Court should sustain this demurrer.
28 ////
8
Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 “Except as otherwise provided by statute . . . a public employee is liable for injury caused
2 by his act or omission to the same extent as a private person.” (Gov. Code § 820.) “A public
3 employee is not liable for his act or omission, exercising due care, in the execution or
4 enforcement of any law.” (Gov. Code § 820.4.) “Except as otherwise provided by statute, a public
5 employee is not liable for an injury caused by the act or omission of another person.” (Gov. Code
6 § 820.8.) “A public employee is not liable for an injury caused by . . . his failure to enforce an
7 enactment.” (Gov. Code § 821.)
8 There is no ground for Plaintiff to establish liability against Defendant here. First,
9 Defendant cannot be liable under Government Code section 820.4 because his failure to prevent
10 the $770 deduction from Plaintiff’s stimulus checks would have been a direct result of executing
11 state prison regulations requiring a deduction of funds from Plaintiff’s wages and trust account
12 deposits, no matter the source of such income. (Cal. Code Regs, tit. 15, § 3097, subd. (a)-(f).)
13 Next, Plaintiff never alleges that Defendant personally deducted the funds at issue or personally
14 ordered someone else to do so. (See generally Compl.) Hence, individuals other than Defendant
15 would have deducted funds from Plaintiff, meaning Defendant cannot be liable for their action
16 under section 820.8. Last, even if the executive orders actually exempted Plaintiff’s stimulus
17 checks from deduction, Defendant’s failure to enforce that enactment would not constitute a basis
18 for Plaintiff to establish liability for negligence. (Gov. Code § 821.) Simply put, Plaintiff’s claim
19 fails under the statutory immunities available to Defendant, even if Plaintiff complied with all
20 conditions precedent to this lawsuit and pled sufficient facts regarding Defendant’s allegedly
21 negligent infliction of mental distress on Plaintiff.
22 ////
23 ////
24 ////
25 ///
26 ////
27 ////
28 ////
9
Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
1 CONCLUSION
2 Plaintiff’s Complaint cannot survive this demurrer because Plaintiff has not complied with
3 the Government Claims Act, fails to allege sufficient facts to state a cause of action for
4 negligence, and cannot overcome statutory immunities applicable to Defendant. The Court should
5 sustain this demurrer and dismiss the claim with prejudice.
6
7 Dated: April 14, 2023 Respectfully submitted,
8 ROB BONTA
Attorney General of California
9 MARISA KIRSCHENBAUER
Supervising Deputy Attorney General
10
11
12 /s/ Theodore Lee
THEODORE G. LEE
13 Deputy Attorney General
Attorneys for Defendant L. Martinez
14
SF2023400669
15 37080594
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Not. & Demur. Compl; Memo. Ps. & As. (23CV000277)
EXHIBIT 01
4
Req. Jud. Not. In Supp. Demur. (23CV000277)
iJGS CALIFORNIA DEPARTMENT OF
GENERAL SERVICES Governor Gavin Newsom
CERTIFICATION
As part of my duties as custodian of records, I am familiar with how the Government
Claims Program (GCP) processes claims and maintains its records of these claims, as
required by law. I am also knowledgeable in the use of the GCP's computer database.
The records of the claims and the database are maintained in the ordinary course of
GCP business. All such computer database entries were made by a government Office
Technician within the technician's scope of duty. The entries are made in the ordinary
course of GCP business, at or near the time the claim is received or acted on by the GCP.
Untimely or rejected claims also appear in the computer database.
I hereby certify that the attached documents are true and correct copies of the
documents constituting the record of the claim of:
Claimant Name: Gilardo J. Sanchez
Claim Number: 23037538
Date of Incident: 10/10/2022
The record includes the claim, any amendments to the claim, and all notices or
correspondences to and from the claimant.
I certify under penalty of perjury under the laws of the State of California that the
foregoing is true and correct to the best of my knowledge and belief. I am willing and
able to testify to the truth of the statements made herein, if necessary.
Executed at West Sacramento, California, on April 13, 2023.
Sheila Emami
Government Claims Program
Office of Risk and Insurance Management I State of California I California Government Operations Agency
707 Third Street, 1st Floor I West Sacramento, CA 95605 I (916) 376-5000 I www.dgs.ca.gov
iJ 1:111s·
I
~
G
CALIFORNIA DE Pll.lH MEN T OF
RAL SERV C 5
Governor Gavin Newsom
04/11/2023
Gildardo J. Sanchez T60096
PO Box 705
Soledad , CA 93960
RE: Document 23037538 Received 10/24/2022 for Gildardo J. Sanchez
Dear Gildardo J. Sanchez,
The documents you submitted on 10/24/2022, failed to comply with Government Code section 905.2(c).
If you wish to file a claim with the Government Claims Program (GCP), please submit the $25 filing fee
by check or money order made payable to the Government Claims Program (GCP). If you are unable to
pay the filing fee , you may provide a Filing Fee Waiver Request. The Filing Fee Waiver Request form
can be downloaded from www.dgs.ca.gov/orim/Forms.aspx
IMPORTANT NOTICE:
In order for tort claims to be considered timely, they must comply with the requirements of Government
Code sections 905.2(c), 910 and 910.2 , and be presented within six months of the original date of
incident (see Government Code Section 901 and 911.2). If you respond later than six months, but prior
to one year from the original date of incident, you must apply without delay for leave to present a late
claim (Government Code Sections 911.2 through 911.4 , inclusive, 946.6).
In order for contract claims to be considered timely, they must comply with the requirements of
Government Code sections 905.2(c), 910 , and 910.2 , and be presented within one year of the original
date of incident (see Government Code Section 901 and 911.2).
The GCP has no jurisdiction over tort or contract claims presented more than one year from the date of
incident.
If you are an inmate, we must receive the $25 filing fee or Filing Fee Waiver Request with a certified
copy of your inmate trust fund account, before we can process your originally submitted documents.
If you have questions about this matter, please feel free to contact GCP by phone, mail , or email using
the contact information below. Please remember to reference the assigned claim number (23037538) in
your communication.
Sincerely,
Government Claims Program
gcinfo@dgs.ca.gov
Office of Risk and Insurance Management I State of California I Government Operations Agency
707 3rd Street, 1st Floor I West Sacramento, CA 956051 t 800-955-0045 f 916-376-6387
' .
STATE OF CALIFORN IA DEPARTMENT OF GENERAL SERVICES
GOVERNMENT CLAIM OFF ICE OF RISK AN D IN SURANCE MANAGEMENT
DGS OR IM 006 (Rev. 08/19)
CLAIMANT INFORMATION 1._.°30°31"5° 3 ~
LAST NAME FIRST NAME MIDDLE INITIAL
&1LDfil<..bO J
INMATE OR PATIENT IDENTIFICATION NUMBER (if applicable) BUSINESS NAME(if applicable)
T- Coooq
TELEPHONE NUMBER EMAIL ADDRESS
MAILING ADDRESS C,oP.RboJL D~vvito~
EXPLAIN WHY YOU BELIEVE THE STATE IS RESPONSIBLE FOR THE DAMAGE OR INJURY r p A.,1) C:>'r/,Of oF-
[.,Q('~OIA. P,-A-ILt,D, 'TI) ~ A,()tMA,'-\,t-g,M'ft-uL-~&1(___, (_A-tf~
Page 1 ol_2__
, STATE,OF CALIFORNIA DEPARTMENT OF GENERA L SERVICES
GOVERNMENT CLAIM OFFICE OF RISK AND INSURANCE MANAGEMENT
DGS ORl~l 006 (Rev. 08/ 19)
AUTOMOB ILE CLAIM INFORMATION
DOES THE CLAIM INVOLVE A STA TE VEHICLE? VEHICLE LICENSE NUMBER(if known ' STATE DRIVER NAME (if known)
0Yes g)' No
HAS A CLAIM BEEN FILED WITH YOUR INSURANCE CARRIER? INSURANCE CARRIER NAME INSURANCE CLAIM NUMBER
0Yes g), No
HAVE YOU RECE IVEDAN INSURANCE PAYMENT FOR THIS DAMAGE OR INJURY ? AMOUNT RECEIVED (if any) AMOUNT OF DEOUCTIBLE(if any)
□ Yes _g'j__No
NOTICE AND SIGNATURE
I declare under penalty of perjuryunderthe laws of the State of California that all the information I have provided is true and correctto
the best of my information and belief. I further understand tha t if I have provided information that is false, intentionall¼incomplete, or
misleading I maybe charged with a felony punishable by up to four years in state prison and/or a fine of up to $1 0,000(PenalCode
section 72).
DATE
DCL "'2..,
IN
• Include a check or money order for $25, payable to the State of California.
• $25 filing fee is not required for amendments to existing claims.
• Confirm all sections relating to this claim are complete and the form is signed.
• Attach copies of any documentation that supports your claim. Do not submit originals.
Mail the cla im form and all attachments to: Claim forms can also be delivered to:
Office of Risk and Insurance Management Office of Risk and Insurance Management
Government Claims Program Government Claims Program
P .O.Box 989052. MS414 707 3rd Street, 1st Floor
West Sacramento .CA 95798-9052 West Sacramento.CA 95605
1-800-955-0045
Department of General Services Privacy Notice on Information Collection
This notice is provided pursuant to the Information Practices Act of 1977, California Civil Code Sections 1798.17 & 1798.24and the Federal
Privacy Act (Public Law93-579).
The Department of General SeNices(DGS),Office of Risk and Insurance Management(ORIM),is requesting the information specified on this
form pursuant to Government Code Section 905.2(c).
The principal purpose for requesting this data is to process claims against the state The information provided will/may be disclosed to a person .or
to another agency where the transfer is necessary for the transferee-agency to perform its constitutional or statutory duties.and the use is
compatible with a purpose for wh ich the in formation was collected and the use or transfer is accounted for in accordance with California Civil Code
Section 1798.25.
Ind ividuals should not provide personal information that is not requested.
The submission of all information requested is mandatory unless otherwise noted. If you fail to provide the information requested toDGS ,or if the
informa tion provided is deemed incomplete or unreadable, this may result in a delay in processing.
Department Privacy Policy
The information collected by DGS Is subject to the limitations in the In formation Practices Act of 1977and state policy (see State Adm111istrat1ve
Manual 5310-53 1O. 7). For more information on how we care for your personal information, please read the DGS PrivacyPol1cv
Access to Your Information
ORIM is responsible for maintaining collected records and retain ing them for 5 years. You have a right to access records containing personal
information maintained by the state entity. To request access.contact:
DGSO RIM
Public Records Officer
707 3 rd st., West Sacramento,CA 95605
916 376-5300
~TATE OF ~ALIFORNIA
Government Claims Program DEPARTMENT OF GENERALSE RV ICES
FEE WAIVER REQUEST OFFICE OF RISK AND INSURANCE MANAGEMENT
DGS 0RIM 005 (Rev. 09/19) OCT 28 2022
CLAIMANT INFORMATION RECEIVED
FIRST NAME
G,L A'RDO
CLAIM NUMBER (IF KNOWN) TELEPHONE NUMBER
If you are an inmate in a cor rect iona l facility, please attach a certified copy of your trust account ba lance .
INMATE IDENTIFICATION NUMBER
7- (e b09,le_
FINANCIAL INFORMATION
0 I am receiving financial assistance from one or more of the following programs
• Supplemental Secu rity Income (SSI) and State Supple m enta l Payments (SSP)
• California Wo r k Opportunity and Responsibility to Kids (CalWORlate Due:_•___________......._......,_ _ _ _ _ _ _....,..._ _ _ __,;
■ . ,
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0!:PARTMl:tll OF CORRECTIONS ANO REH"'81LITA TION
APPEAL OF GRIEVANCE
CDCR 602-2 (0 3/20) P~ge 2 of 2.
Claim#:._ _ _ _( _ _ _ __
Explain the reason for your appeal. Be as specific as you Co4=l,
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Are there documents that would be helpful to support your position? Attach copies of those documents, if you don't have
the documents, identify them as best you can below:
6-ov 4Rop2 ,v -s7-J::<1
RECBY
Reminder: Please attach all documents i your possession that support your claim(s). OEC 11
Please note that th is form and supporti g documents will not be returned to you .
Date Signed : ~ / 1o2 I.
/2 I/~.-T .
MAIL TO: Office of Appeals
Department of Corrections ;md Rehab1
I P.O. Box 942883
Sacramento. CA 9581 1
_'-,_._CALIFORN IA DEPARTMENT of
Corrections and Rehabilitation
CLAIMANT APPEAL CLAIMS DECISION RESPONSE
Re: Appeal Claims Decision Response
Offender Name: SANCHEZ, GILDARDO JUAREZ Date: 10/10/2022
CDC#: T60096
Current Location: CTF-Facility B Current Area/Bed: B WH A3 - 3503S0L
Log #: 000000171226
Claim# 001
Received at Institution/Parole Region: Correctional Training Facility
Submitted to Facility/Parole District: Correctional Training Facility
Housing Area/Parole Unit:
Category: Offender Trust Accounts Sub-Category: Other Trust Account Issue - NOS
The California Department of Corrections and Rehabilitation (CDCR) Office of Appeals received this claim on 12/13/2021.
California Code of Regulations, title 15, provides the Office of Appeals 60 calendar days to complete a response. Due to the expiration of time, this response
by the Office of Appeals will be the only response.
You do not need to resubmit this claim to the Office of Grievances or to the CDCR Office of Appeals.
Decision: Time Expired
State of California Department of Corrections and Rehabilitation
Office of Appeals
Memorandum
To: Claimant
Subject: DECISION ON APPEAL - TIME EXPIRED
Thank you for submitting your appeal for review by the California Department of
Corrections, Office of Appeals . Your appeal decision letter is included in this envelope.
Pursuant to Colifornio Code of Regulations , title 15, section 3485(9), the OOA had
sixty calendar days to complete a written response to your appeal. However, the time-
period expired before the OOA was able to respond to your appeal. Thus , the decision
by the Office of Grievances serves as the Department's final response to your
allegations.
Pursuant to current governing regulations, a copy of your CDCR Form 602-2 is
included along with your appeal decision letter. However, no other supporting
documents are included in this envelope. Please be advised that a copy of your entire
appeal package is maintained in your Central File. You may obtain these documents
by requesting an Olsen review as described in the Department Operations Manual,
sections 13030.16 and 13030.17.
Thank you ,
HOWARD E. MOSELEY
Associate Director
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1 ROB BONTA Exempt from Filing Fees Pursuant to Attorney General of California 2 MARISA KIRSCHENBAUER Government Code §6103 Supervising Deputy Attorney General 3 THEODORE G. LEE Deputy Attorney General 4 State Bar No. 340700 455 Golden Gate Avenue, Suite 11000 5 San Francisco, CA 94102-7004 Telephone: (415) 229-0111 6 Fax: (415) 703-5843 E-mail: Theodore.Lee@doj.ca.gov 7 Attorneys for Defendant L. Martine 8 z 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF MONTEREY 11 12 13 14 GILDARDO SANCHEZ, Case No. 23CV000277 15 Plaintiff, NOTICE AND DEMURRER TO COMPLAINT; 16 v. MEMORANDUM OF POINTS AND 17 AUTHORITIES IN SUPPORT OF DEMURRER 18 L. MARTINEZ, Warden, Date: May 12, 2023 19 Defendant. Time: 08:30 a.m. Dept: 13A 20 Judge: The Honorable Vanessa W. Vallarta Action Filed: January 27, 2023 21 22 TO THE COURT AND PLAINTIFF GILDARDO SANCHEZ, PRO SE: 23 PLEASE TAKE NOTICE that Defendant L. Martinez will demur to the Complaint in its 24 entirety. The demurrer hearing will take place on May 12, 2023 at 08:30 a.m., before the 25 Honorable Vanessa W. Vallarta in Department 13A of the Superior Court for the County of 26 Monterey, located at 1200 Aguajito Road, Monterey, California 93940. 27 //// 28 //// 1 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 Defendant will demur on the following grounds: 2 1. Plaintiff’s failure to comply with the California Government Claims Act prior to 3 commencing this action bars the Complaint’s sole cause of action for negligence. (Gov. Code §§ 4 905.2, 910, 945.4, 950.2, 950.6.) 5 2. The Complaint fails to allege sufficient facts to state a cause of action for negligence 6 because Defendant lawfully and correctly deducted money from Plaintiff’s trust account to pay 7 for court-ordered restitution. (Penal Code §§ 1202.4, 2085.5; Cal. Code Regs., tit. 15, § 3097, 8 subd. (c).) 9 10 The parties are exempt from having to meet and confer prior to Defendant filing this 11 demurrer under Code of Civil Procedure section 430.41, subdivision (d)(1). Defendant requests to 12 remotely appear, through counsel, under California Rules of Court section 3.672 and Court 13 Access and Administration Local Rule 1.8, subdivision (C)(1)(A). 14 The demurrer will be based on this notice of demurrer and demurrer, the accompanying 15 memorandum of points and authorities, the request for judicial notice and exhibits attached 16 thereto, and the court’s files in this matter. 17 18 Dated: April 14, 2023 Respectfully submitted, 19 ROB BONTA Attorney General of California 20 MARISA KIRSCHENBAUER Supervising Deputy Attorney General 21 22 23 /s/ Theodore Lee THEODORE G. LEE 24 Deputy Attorney General Attorneys for Defendant L. Martinez 25 SF2023400669 26 37080594 27 28 2 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 INTRODUCTION 3 Plaintiff is a state prisoner who alleges that Defendant improperly deducted funds from his 4 inmate trust account to pay Plaintiff’s outstanding restitution. Plaintiff’s negligence claim against 5 Defendant fails because he did not comply with the Government Claims Act prior to commencing 6 this lawsuit and because he does not allege sufficient facts to state a cause of action. Moreover, 7 Defendant is entitled to numerous immunities under the law against the claim. Plaintiff cannot 8 recover relief against Defendant here and the Court should sustain this demurrer with prejudice. 9 PLAINTIFF’S ALLEGATIONS 10 Plaintiff is a state prisoner incarcerated at Correctional Training Facility (CTF). (Complaint 11 [Compl.] at p. 7.) Defendant is the CTF Warden. (Id.) Plaintiff alleges he received $1,400 in his 12 federal stimulus check, from which CTF deducted $770 for “exempt fines and fees.” (Id.) 13 According to Plaintiff, California Governor Newsom “issued Executive Order # N-57-20, 14 specifically making stimulus checks exempt from deductions from prison officials for court fees, 15 legal mail, copy, restitution, debts, without need for further order.” (Id.) Plaintiff asserts he 16 exhausted the government claims process because he did not receive a response within forty-five 17 days after he submitted his claim. (Id. at p. 8 [citing Gov. Code § 912.4].) 18 Plaintiff states he suffered mental distress due to the alleged “unlawful collection funds” 19 from his inmate trust account. (Compl. at p. 8.) For relief, Plaintiff seeks $100,000 in damages 20 and costs. (Id. at pp. 4, 9.) 21 STANDARD ON DEMURRER 22 A party may object to a complaint in its entirety or to any of its causes of action. (Code Civ. 23 Proc., § 430.50, subd. (a).) A demurrer tests the legal sufficiency of factual allegations in a 24 complaint. (Rakestraw v. Cal. Physicians’ Service (2000) 81 Cal.App.4th 39, 42.) In reviewing 25 the sufficiency of a complaint against a general demurrer, the court accepts the truth of all well- 26 pleaded facts but need not accept contentions, deductions, or conclusions of law or fact. (Blank v. 27 Kirwan (1985) 39 Cal.3d 311, 318.) The court also accepts as true the contents of any exhibits 28 attached to the complaint, and the contents of an incorporated document will take precedence 3 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 over and supersede any inconsistent or contrary allegations set out in the pleading. (Building 2 Permit Consultants, Inc. v. Mazur (2004) 122 Cal. App. 4th 1400, 1409). The court may also 3 consider matters outside the pleading that are judicially noticeable. (Blank v. Kirwan, supra, 39 4 Cal.3d at p. 318.) 5 ARGUMENT 6 The Court should sustain this demurrer with prejudice. First, Plaintiff has not complied with 7 the Government Claims Act, for which he has no valid excuse and cannot cure. Second, Plaintiff 8 does not allege sufficient facts to state a cause of action for negligence against Defendant. Third, 9 statutory immunities bar Plaintiff’s claim and Plaintiff alleges no facts to overcome them. 10 Plaintiff’s claim cannot proceed any further and the Court should dismiss it with prejudice. 11 I. PLAINTIFF DID NOT COMPLY WITH THE GOVERNMENT CLAIMS ACT. 12 Plaintiff’s suit cannot proceed because he did not comply with the Government Claims Act. 13 Given Plaintiff’s failure to satisfy a condition precedent to this suit, the law procedurally bars 14 Plaintiff’s negligence claim. Hence, sustaining this demurrer is appropriate and necessary. 15 “Some inmate lawsuits alleging state law claims against prison officials are subject to the 16 claim presentation requirements of the Government Claims Act.” (Foster v. Sexton (2021) 61 17 Cal.App.5th 998, 1021.) “[W]hen a cause of action falls within the scope of the Government 18 Claims Act, submission of a claim is a condition precedent to maintaining a tort action and 19 compliance is treated as an essential element of the cause of action that must be pleaded.” (Id. at 20 pp. 1021–1022 [citing State of Cal. v. Superior Court (2004) 32 Cal.4th 1234, 1239–1240].) 21 “Despite other administrative remedies that may be available, prisoners have an independent 22 ‘obligation to comply with the Government Claims Act.’” (Id. at p. 1022 [quoting Parthemore v. 23 Col (2013) 221 Cal.App.4th 1372, 1382].) A claim for money or damages falls under the scope of 24 the Government Claims Act. (See id. at p. 1022 [citing Gov. Code § 905.2, subd. (b)].) 25 Plaintiff filed a government claim form on October 23, 2022. (Compl. at pp. 12–14.) This 26 did not comply with the Government Claims Act in several respects. First, there is no proof that 27 the Department of General Services rejected Plaintiff’s claim. The law made clear that when “a 28 written claim for money or damages for injury has been presented,” a cause of action for “such 4 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 injury may not be maintained against the public employee . . . until the claim has been rejected, or 2 has been deemed to have been rejected, in whole or in part by the public entity.” (Gov. Code § 3 950.6, subd. (a).) Here, Plaintiff offers nothing to show that the Department rejected his October 4 2022 claim. (See generally Compl.) 5 Second, Plaintiff’s attempt to deem his claim as rejected is erroneous. Plaintiff contends 6 that he complied with the government claims process because he did not receive a response 7 within forty-five days, citing Government Code section 912.4. (See Compl. at 8.) That section 8 requires the Department to act on a claim “within 45 days after the claim has been presented.” 9 The key word here is “presented,” which requires paying a $25 filing fee or requesting a fee 10 waiver with the necessary supporting documents at the time of filing. (See Gov. Code § 905.2, 11 subd. (c)-(d).) In other words, if Plaintiff did not submit his October 2022 claim either with the 12 filing fee or with a proper fee waiver request, he did not “present” his claim to the Department. 13 And this is exactly what happened. (See Request for Judicial Notice (RJN) Exhibit 1 at 2.) 14 Moreover, Plaintiff’s failure to pay the filing fee or request a fee waiver is inexcusable 15 considering that Plaintiff had notice that failing to provide all the requisite information “may 16 result in denial of filing fee waiver request.” (Compl. at 15.) 17 Third, the October 2022 grievance did not substantially comply with the Government 18 Claims Act. The Act’s purpose is to “‘provide the public entity sufficient information to enable it 19 to adequately investigate claims and to settle them, if appropriate, without the expense of 20 litigation.’” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738 [quoting City of San 21 Jose v. Superior Court (1974) 12 Cal.3d 447, 455].) Doing so requires presenting a claim that 22 “‘contains the information required by section 910 . . . .’” (Simms v. Bear Valley Community 23 Healthcare Dist. (2022) 80 Cal.App.5th 391, 400 [quoting Phillips v. Desert Hospital 24 Dist. (1989) 49 Cal.3d 699, 707].) Moreover, a failure to substantially comply with section 910 is 25 excusable if a claim “put the public entity on notice both that the claimant is attempting to file a 26 valid claim and that litigation will result if the matter is not resolved.” (Del Real v. City of 27 Riverside (2002) 95 Cal.App.4th 761, 769 [citations]. Yet, Plaintiff’s government claim did not 28 meet this low threshold because it did not name Defendant, specify the date that Defendant 5 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 deducted the funds at issue, or the computation basis for the requested $100,000, all of which 2 Government Code section 910 required.1 (See Compl. at pp. 12–14.) Thus, the October 2022 3 claim’s omission of critical information neither constituted a valid claim nor reasonably put the 4 Department on notice that failing to settle the claim would result in Plaintiff’s litigation against 5 Defendant. And Plaintiff cannot excuse his omission of the essential facts because filing the 6 October 2022 claim demonstrated his familiarity with the relevant statutory requirements. 7 (Cf. Hunter v. Los Angeles County (1968) 262 Cal.App.2d 820, 822.) 8 Plaintiff failed to comply with the Government Claims Act when he commenced this suit 9 without obtaining a denial of his October 2022 government claim, which he did not properly 10 present. Accordingly, the law procedurally bars Plaintiff’s negligence claim against Defendant 11 from proceeding on the merits. The Court should sustain this demurrer and dismiss the claim with 12 prejudice. 13 II. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION FOR NEGLIGENCE. 14 Plaintiff’s suit also fails because he did not allege sufficient facts to state a cause of action 15 for negligence against Defendant. Namely, Defendant’s alleged deduction of Plaintiff’s funds did 16 not breach any duty owed to Plaintiff. That failure justifies sustaining this demurrer. 17 The elements of a negligence claim are (1) defendant’s legal duty owed to plaintiff, (2) a 18 breach of said duty, (3) proximate causation, and (4) damages or injuries. (See, e.g., Ladd v. 19 County of San Mateo (1996) 12 Cal.4th 913, 917–918 [citation].) Negligent infliction of 20 emotional distress “‘is not an independent tort but the tort of negligence . . . .’” (Marlene F. v. 21 Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [emphasis in original] 22 1 A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: 23 .... 24 (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. 25 (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. 26 (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. 27 (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim . . . together with the basis of computation of the amount claimed. 28 6 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 [omission in original] [citation].) “‘Whether a defendant owes a duty of care . . . depends upon the 2 foreseeability of the risk and upon a weighing of policy considerations for and against imposition 3 of liability.’” (Id. [quoting Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 4 1236, 1249].) “In order to limit the otherwise potential infinite liability which would follow every 5 negligent act, the law of torts holds defendant amenable only for injuries to others which to 6 defendant at the time were reasonably foreseeable.” (Dillon v. Legg (1968) 441 P.2d 912, 919.) 7 The Complaint fails to allege sufficient facts to state a cause of action for negligence here. 8 First, Defendant did not owe any duty to not deduct the funds at issue here. To start, the injury 9 that Plaintiff alleges was not reasonably foreseeable. Plaintiff claims he “suffered mental distress 10 due to unlawful collection of funds out of account.” (Compl. at p 8.) But he offers no factual 11 details on why said collection caused him mental distress. Further, the deduction of funds from 12 inmates’ trust accounts to pay court-ordered restitution or restitution fines is one of the state 13 prison system’s regularly conducted businesses. (See Cal. Code Regs., tit. 15, § 3097.) Defendant 14 therefore could not reasonably foresee that conducting a regular activity would suddenly cause 15 some new or novel harm to Plaintiff. (Cf. Kiseskey v. Carpetners’ Trust for So. Cal. (1983) 144 16 Cal.App.3d 222, 231 [“It is clear that a mere monetary or transitory emotional distress is 17 insufficient to constitute severe emotional distress.”].) 18 Policy considerations also weigh against finding that Defendant owed any duty to Plaintiff 19 here. Although the state law imposes certain express duties on Defendant in his role as a warden, 20 none imposes a duty to prevent or mitigate an incorrect deduction of funds from inmates’ trust 21 accounts. (See Pen. Code §§ 2087, 2901, 3700, 3701, 4007, 5056.) And while one of Defendant’s 22 duties may be directing “the business and financial affairs of the institution,” this is unlikely owed 23 to Plaintiff or other inmates, given Defendant is to do so “in accordance with sound fiscal 24 principles and directions from Central Regional Accounting.” (Compl. at 20.) This is a sensible 25 interpretation considering Defendant is Correctional Training Facility’s “chief executive officer” 26 who must “establish such operational plans and procedures as required by the Secretary for 27 implementation of regulations and as may otherwise be required for their respective operations.” 28 (Cal. Code Regs., tit. 15, § 3380, subd. (a), (c).) That Plaintiff identifies no authority imposing the 7 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 duty at issue here on Defendant also favors concluding that Defendant did not owe a legal duty to 2 ensure that no Correctional Training Facility staff deducted funds from Plaintiff’s stimulus 3 checks. 4 Second, even if Defendant owed a duty to Plaintiff, no breach occurred. Plaintiff contends 5 two executive orders—N-57-20 and N-04-22—exempted Plaintiff’s stimulus checks from a 6 deduction for restitution purposes. (Compl. at p. 8.) This is incorrect because the exemption 7 provided in the executive orders “did not apply to any attachment, levy, execution, or 8 garnishment in connection with any action for, or any judgment awarding . . . any criminal 9 restitution payable to victims.” (Governor’s Exec. Order No. N-57-20 at p. 2, ¶ 3 (Apr. 23, 2020); 10 see also Governor’s Exec. Order No. N-04-22 at p. 2, ¶ 12(c) (Feb. 25, 2022) [extending Exec. 11 Order No. N-57-20 to March 31, 2022].) Plaintiff acknowledges that Correctional Training 12 Facility deducted funds for restitution purposes. (Compl. at 17.) Plaintiff’s own allegation thus 13 settles that Defendant could have not breached any duty owed to Plaintiff because the deduction 14 would have been proper under the two executive orders and the relevant state regulations. (See, 15 e.g., Cal. Code Regs., tit. 15, § 3097.) Finally, the executive order explicitly held that it did not 16 “create any rights or benefits, substantive or procedural, enforceable at law or in equity, against 17 the State of California, its agencies, departments, entities, officers, employees, or any other 18 person.” (Governor’s Exec. Order No. N-57-20 at p. 2.) This text confirms that Plaintiff never had 19 any right or duty under the executive order that Defendant could even breach. 20 Plaintiff’s allegations in the Complaint are insufficient to state a cause of action for 21 negligence. In particular, Plaintiff does not sufficiently allege facts on what duty Defendant owed 22 to Plaintiff here or how Defendant breached such a duty. Accordingly, sustaining this demurrer is 23 appropriate and necessary. 24 III. STATUTORY IMMUNITIES BAR PLAINTIFF’S CLAIM. 25 Finally, various statutory immunities shield Defendant from liability. Plaintiff does not 26 allege facts that invalidate those immunities. Therefore, Plaintiff’s claim cannot proceed and the 27 Court should sustain this demurrer. 28 //// 8 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 “Except as otherwise provided by statute . . . a public employee is liable for injury caused 2 by his act or omission to the same extent as a private person.” (Gov. Code § 820.) “A public 3 employee is not liable for his act or omission, exercising due care, in the execution or 4 enforcement of any law.” (Gov. Code § 820.4.) “Except as otherwise provided by statute, a public 5 employee is not liable for an injury caused by the act or omission of another person.” (Gov. Code 6 § 820.8.) “A public employee is not liable for an injury caused by . . . his failure to enforce an 7 enactment.” (Gov. Code § 821.) 8 There is no ground for Plaintiff to establish liability against Defendant here. First, 9 Defendant cannot be liable under Government Code section 820.4 because his failure to prevent 10 the $770 deduction from Plaintiff’s stimulus checks would have been a direct result of executing 11 state prison regulations requiring a deduction of funds from Plaintiff’s wages and trust account 12 deposits, no matter the source of such income. (Cal. Code Regs, tit. 15, § 3097, subd. (a)-(f).) 13 Next, Plaintiff never alleges that Defendant personally deducted the funds at issue or personally 14 ordered someone else to do so. (See generally Compl.) Hence, individuals other than Defendant 15 would have deducted funds from Plaintiff, meaning Defendant cannot be liable for their action 16 under section 820.8. Last, even if the executive orders actually exempted Plaintiff’s stimulus 17 checks from deduction, Defendant’s failure to enforce that enactment would not constitute a basis 18 for Plaintiff to establish liability for negligence. (Gov. Code § 821.) Simply put, Plaintiff’s claim 19 fails under the statutory immunities available to Defendant, even if Plaintiff complied with all 20 conditions precedent to this lawsuit and pled sufficient facts regarding Defendant’s allegedly 21 negligent infliction of mental distress on Plaintiff. 22 //// 23 //// 24 //// 25 /// 26 //// 27 //// 28 //// 9 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) 1 CONCLUSION 2 Plaintiff’s Complaint cannot survive this demurrer because Plaintiff has not complied with 3 the Government Claims Act, fails to allege sufficient facts to state a cause of action for 4 negligence, and cannot overcome statutory immunities applicable to Defendant. The Court should 5 sustain this demurrer and dismiss the claim with prejudice. 6 7 Dated: April 14, 2023 Respectfully submitted, 8 ROB BONTA Attorney General of California 9 MARISA KIRSCHENBAUER Supervising Deputy Attorney General 10 11 12 /s/ Theodore Lee THEODORE G. LEE 13 Deputy Attorney General Attorneys for Defendant L. Martinez 14 SF2023400669 15 37080594 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Not. & Demur. Compl; Memo. Ps. & As. (23CV000277) EXHIBIT 01 4 Req. Jud. Not. In Supp. Demur. (23CV000277) iJGS CALIFORNIA DEPARTMENT OF GENERAL SERVICES Governor Gavin Newsom CERTIFICATION As part of my duties as custodian of records, I am familiar with how the Government Claims Program (GCP) processes claims and maintains its records of these claims, as required by law. I am also knowledgeable in the use of the GCP's computer database. The records of the claims and the database are maintained in the ordinary course of GCP business. All such computer database entries were made by a government Office Technician within the technician's scope of duty. The entries are made in the ordinary course of GCP business, at or near the time the claim is received or acted on by the GCP. Untimely or rejected claims also appear in the computer database. I hereby certify that the attached documents are true and correct copies of the documents constituting the record of the claim of: Claimant Name: Gilardo J. Sanchez Claim Number: 23037538 Date of Incident: 10/10/2022 The record includes the claim, any amendments to the claim, and all notices or correspondences to and from the claimant. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge and belief. I am willing and able to testify to the truth of the statements made herein, if necessary. Executed at West Sacramento, California, on April 13, 2023. Sheila Emami Government Claims Program Office of Risk and Insurance Management I State of California I California Government Operations Agency 707 Third Street, 1st Floor I West Sacramento, CA 95605 I (916) 376-5000 I www.dgs.ca.gov iJ 1:111s· I ~ G CALIFORNIA DE Pll.lH MEN T OF RAL SERV C 5 Governor Gavin Newsom 04/11/2023 Gildardo J. Sanchez T60096 PO Box 705 Soledad , CA 93960 RE: Document 23037538 Received 10/24/2022 for Gildardo J. Sanchez Dear Gildardo J. Sanchez, The documents you submitted on 10/24/2022, failed to comply with Government Code section 905.2(c). If you wish to file a claim with the Government Claims Program (GCP), please submit the $25 filing fee by check or money order made payable to the Government Claims Program (GCP). If you are unable to pay the filing fee , you may provide a Filing Fee Waiver Request. The Filing Fee Waiver Request form can be downloaded from www.dgs.ca.gov/orim/Forms.aspx IMPORTANT NOTICE: In order for tort claims to be considered timely, they must comply with the requirements of Government Code sections 905.2(c), 910 and 910.2 , and be presented within six months of the original date of incident (see Government Code Section 901 and 911.2). If you respond later than six months, but prior to one year from the original date of incident, you must apply without delay for leave to present a late claim (Government Code Sections 911.2 through 911.4 , inclusive, 946.6). In order for contract claims to be considered timely, they must comply with the requirements of Government Code sections 905.2(c), 910 , and 910.2 , and be presented within one year of the original date of incident (see Government Code Section 901 and 911.2). The GCP has no jurisdiction over tort or contract claims presented more than one year from the date of incident. If you are an inmate, we must receive the $25 filing fee or Filing Fee Waiver Request with a certified copy of your inmate trust fund account, before we can process your originally submitted documents. If you have questions about this matter, please feel free to contact GCP by phone, mail , or email using the contact information below. Please remember to reference the assigned claim number (23037538) in your communication. Sincerely, Government Claims Program gcinfo@dgs.ca.gov Office of Risk and Insurance Management I State of California I Government Operations Agency 707 3rd Street, 1st Floor I West Sacramento, CA 956051 t 800-955-0045 f 916-376-6387 ' . STATE OF CALIFORN IA DEPARTMENT OF GENERAL SERVICES GOVERNMENT CLAIM OFF ICE OF RISK AN D IN SURANCE MANAGEMENT DGS OR IM 006 (Rev. 08/19) CLAIMANT INFORMATION 1._.°30°31"5° 3 ~ LAST NAME FIRST NAME MIDDLE INITIAL &1LDfil<..bO J INMATE OR PATIENT IDENTIFICATION NUMBER (if applicable) BUSINESS NAME(if applicable) T- Coooq TELEPHONE NUMBER EMAIL ADDRESS MAILING ADDRESS C,oP.RboJL D~vvito~ EXPLAIN WHY YOU BELIEVE THE STATE IS RESPONSIBLE FOR THE DAMAGE OR INJURY r p A.,1) C:>'r/,Of oF- [.,Q('~OIA. P,-A-ILt,D, 'TI) ~ A,()tMA,'-\,t-g,M'ft-uL-~&1(___, (_A-tf~ Page 1 ol_2__ , STATE,OF CALIFORNIA DEPARTMENT OF GENERA L SERVICES GOVERNMENT CLAIM OFFICE OF RISK AND INSURANCE MANAGEMENT DGS ORl~l 006 (Rev. 08/ 19) AUTOMOB ILE CLAIM INFORMATION DOES THE CLAIM INVOLVE A STA TE VEHICLE? VEHICLE LICENSE NUMBER(if known ' STATE DRIVER NAME (if known) 0Yes g)' No HAS A CLAIM BEEN FILED WITH YOUR INSURANCE CARRIER? INSURANCE CARRIER NAME INSURANCE CLAIM NUMBER 0Yes g), No HAVE YOU RECE IVEDAN INSURANCE PAYMENT FOR THIS DAMAGE OR INJURY ? AMOUNT RECEIVED (if any) AMOUNT OF DEOUCTIBLE(if any) □ Yes _g'j__No NOTICE AND SIGNATURE I declare under penalty of perjuryunderthe laws of the State of California that all the information I have provided is true and correctto the best of my information and belief. I further understand tha t if I have provided information that is false, intentionall¼incomplete, or misleading I maybe charged with a felony punishable by up to four years in state prison and/or a fine of up to $1 0,000(PenalCode section 72). DATE DCL "'2.., IN • Include a check or money order for $25, payable to the State of California. • $25 filing fee is not required for amendments to existing claims. • Confirm all sections relating to this claim are complete and the form is signed. • Attach copies of any documentation that supports your claim. Do not submit originals. Mail the cla im form and all attachments to: Claim forms can also be delivered to: Office of Risk and Insurance Management Office of Risk and Insurance Management Government Claims Program Government Claims Program P .O.Box 989052. MS414 707 3rd Street, 1st Floor West Sacramento .CA 95798-9052 West Sacramento.CA 95605 1-800-955-0045 Department of General Services Privacy Notice on Information Collection This notice is provided pursuant to the Information Practices Act of 1977, California Civil Code Sections 1798.17 & 1798.24and the Federal Privacy Act (Public Law93-579). The Department of General SeNices(DGS),Office of Risk and Insurance Management(ORIM),is requesting the information specified on this form pursuant to Government Code Section 905.2(c). The principal purpose for requesting this data is to process claims against the state The information provided will/may be disclosed to a person .or to another agency where the transfer is necessary for the transferee-agency to perform its constitutional or statutory duties.and the use is compatible with a purpose for wh ich the in formation was collected and the use or transfer is accounted for in accordance with California Civil Code Section 1798.25. Ind ividuals should not provide personal information that is not requested. The submission of all information requested is mandatory unless otherwise noted. If you fail to provide the information requested toDGS ,or if the informa tion provided is deemed incomplete or unreadable, this may result in a delay in processing. Department Privacy Policy The information collected by DGS Is subject to the limitations in the In formation Practices Act of 1977and state policy (see State Adm111istrat1ve Manual 5310-53 1O. 7). For more information on how we care for your personal information, please read the DGS PrivacyPol1cv Access to Your Information ORIM is responsible for maintaining collected records and retain ing them for 5 years. You have a right to access records containing personal information maintained by the state entity. To request access.contact: DGSO RIM Public Records Officer 707 3 rd st., West Sacramento,CA 95605 916 376-5300 ~TATE OF ~ALIFORNIA Government Claims Program DEPARTMENT OF GENERALSE RV ICES FEE WAIVER REQUEST OFFICE OF RISK AND INSURANCE MANAGEMENT DGS 0RIM 005 (Rev. 09/19) OCT 28 2022 CLAIMANT INFORMATION RECEIVED FIRST NAME G,L A'RDO CLAIM NUMBER (IF KNOWN) TELEPHONE NUMBER If you are an inmate in a cor rect iona l facility, please attach a certified copy of your trust account ba lance . INMATE IDENTIFICATION NUMBER 7- (e b09,le_ FINANCIAL INFORMATION 0 I am receiving financial assistance from one or more of the following programs • Supplemental Secu rity Income (SSI) and State Supple m enta l Payments (SSP) • California Wo r k Opportunity and Responsibility to Kids (CalWORlate Due:_•___________......._......,_ _ _ _ _ _ _....,..._ _ _ __,; ■ . , '' · . :CateQO[i~s:.,........................,,,..,......,...----.,..._.....,....__,._......,._......,._..,....._ _ _ _...:...,_..........____ ··Grievanc~•ti: ___;-------------~. . . . . . . . ----------:-:------ Cla,ipfant Name=---------+--------~--..,.'....,.._"·--- ..,.. COOR#: ~ 6QQ1fo C(ilt~~i H~~$lni/~a.iol~-1hiitf~-·~ -~--'--··-·"-~·-, ·-·~·:,dstit~t;o~/F"acillty{Pa'r~le·Rt'~ion:_·_·--,,__;.-~_1_·_ ~ 'I • D I T.here are no ·claims that'can be appealed. ;1.~ d 1 ioHovJiti'g' ~lairilicain~t :be appeJI';~~ ;, ~.,i.7' "'':''"' .' -· . OOA RCC.REV!EWED 'J~SC-B¥, . ;00A·: I - - ~, :~ . . Claim #s: .,, DEC 13 2021 ,-. / This is the process 10· aopeal the decision made regarding a claim that is not listed above. Clai~ #;: . t ·,. . .. Explain, the reason for your appeal of any claims' not listed ·above. Be as specific as you can. I a.m~issatisfied.~ith t~ response_: was given ;because l)55~ Sfi~ wzt~ &D;~/Wl7!11l,'fJ ~/ .· ' ~-ff< ~ ,AiY(n14t;&O :t>JllrR_ .(ctl/J1d(?S. a//Je.e:k_ /Jt,,7. Jl,-~~~l rzo p$JD.c,'77C7?2 ,· ' ' ~ -.·_.: · . ,· ·. I . , _./'-Joo .• · v5 4~ . '11 • / .· • ' ,., c.;...ov _,, , · 1·' ,-'.",:-_..,-,· ,, ' ;,,,::··, .· .,,,, { ',, ··. " _,/ '. ._,~· . : _.·-- "' . ...~·- ' ,/,._; , ..,·': · ' '' ·1 i I . .. ~ ' , - -,j--,-"'-'-,..,........... ~,,.._.:..-.........,,...__~,......,.-,......_'---,-,-.....,...,c-:,-'-c-:,-'--~~--,,.~-c-.......,.~----:--'--=~-----,----,~,..,,...,.-_;,_.,......._::_._ " ,,. ' ,. , .. 14 • ' • " ' (,, • r " :, •rp As,.'"" •. .f~4ll.·,· ·.~".: , t " /,\It _;t_:._ ·· • ·st_>::;· 4: ·,. '~.. ~,., , ,, ,,:." " ~. ; ,~ : ' . ' ... msi'ii1su:r10N . t . . '1Jr1<11n,.,• Ctaf~ 'anl'sFili;' · ; 2~plesi DAI. oX~o..andC_lal~~~(':-' i !, I 1. l ! S ATE CF CALIFORNIA ~ .. 0!:PARTMl:tll OF CORRECTIONS ANO REH"'81LITA TION APPEAL OF GRIEVANCE CDCR 602-2 (0 3/20) P~ge 2 of 2. Claim#:._ _ _ _( _ _ _ __ Explain the reason for your appeal. Be as specific as you Co4=l, I am dis satisfied with the response I was given because Dt 5 54-1:1 SA SJ) 'FoR (p o::i..., ptJ(iiJ.A. (lJ.1 ~ C,r&fi}11Jrl,oo orJhR $[7tnt4S t:-if.f..ek 124TSt1~J5r "("b 'Dlii/XXJ10"1 "EN? tf£SD[ld7~ tb...u£Vf.A l /'-(DO DdlAR Stiw,vLv.S .AlSiJ €X/51A,jo7 PeR. 2fvt1f lrt>v .ElL~CJv'T1i±_ " t2Bb fR N:-S7 -~o I s :C,t£S TY111r ,r"1pd,lf5 1'1) !t!J 1-f., tv.'~L cHEck. <;. ) . ~ITT~s't¼Z?'~~~=t;[)(;~~ @nie-1 220 Are there documents that would be helpful to support your position? Attach copies of those documents, if you don't have the documents, identify them as best you can below: 6-ov 4Rop2 ,v -s7-J::<1 RECBY Reminder: Please attach all documents i your possession that support your claim(s). OEC 11 Please note that th is form and supporti g documents will not be returned to you . Date Signed : ~ / 1o2 I. /2 I/~.-T . MAIL TO: Office of Appeals Department of Corrections ;md Rehab1 I P.O. Box 942883 Sacramento. CA 9581 1 _'-,_._CALIFORN IA DEPARTMENT of Corrections and Rehabilitation CLAIMANT APPEAL CLAIMS DECISION RESPONSE Re: Appeal Claims Decision Response Offender Name: SANCHEZ, GILDARDO JUAREZ Date: 10/10/2022 CDC#: T60096 Current Location: CTF-Facility B Current Area/Bed: B WH A3 - 3503S0L Log #: 000000171226 Claim# 001 Received at Institution/Parole Region: Correctional Training Facility Submitted to Facility/Parole District: Correctional Training Facility Housing Area/Parole Unit: Category: Offender Trust Accounts Sub-Category: Other Trust Account Issue - NOS The California Department of Corrections and Rehabilitation (CDCR) Office of Appeals received this claim on 12/13/2021. California Code of Regulations, title 15, provides the Office of Appeals 60 calendar days to complete a response. Due to the expiration of time, this response by the Office of Appeals will be the only response. You do not need to resubmit this claim to the Office of Grievances or to the CDCR Office of Appeals. Decision: Time Expired State of California Department of Corrections and Rehabilitation Office of Appeals Memorandum To: Claimant Subject: DECISION ON APPEAL - TIME EXPIRED Thank you for submitting your appeal for review by the California Department of Corrections, Office of Appeals . Your appeal decision letter is included in this envelope. Pursuant to Colifornio Code of Regulations , title 15, section 3485(9), the OOA had sixty calendar days to complete a written response to your appeal. However, the time- period expired before the OOA was able to respond to your appeal. Thus , the decision by the Office of Grievances serves as the Department's final response to your allegations. Pursuant to current governing regulations, a copy of your CDCR Form 602-2 is included along with your appeal decision letter. However, no other supporting documents are included in this envelope. Please be advised that a copy of your entire appeal package is maintained in your Central File. You may obtain these documents by requesting an Olsen review as described in the Department Operations Manual, sections 13030.16 and 13030.17. Thank you , HOWARD E. MOSELEY Associate Director ---- ~·········· ~· r - - - - - - ~ - ...,. I.J) ~ 0- I tj ~ Cl) v