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1 XAVIER BECERRA, State Bar No. 118517 [Exempt from Filing Fees Pursuant
Attorney General of California to Government Code § 6103]
2 LORA CURTIS, State Bar No. 215725
Supervising Deputy Attorney General
3 ROLANDO PASQUALI, State Bar No. 106836
Deputy Attorney General E-FILED
4 455 Golden Gate Ave., Suite 11000 3/19/2021 12:34 PM
San Francisco, CA 94102 Telephone: Superior Court of California
5 (415) 510-3533 County of Fresno
Fax: (415) 703-5480 By: I. Herrera, Deputy
6 E-mail: Rolando.Pasquali@doj.ca.gov
Attorneys for Defendants
7 K. Powell, Stuart Sherman, C. Cryer, M. Fritz, D.
Costa Morrow, R. Handy, R. Whitaker, A. Basa, C.
8 Belantes, O. Nakulima, A. Price, J. Villarreal, and
L. Villasenor
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CALIFORNIA SUPERIOR COURT
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COUNTY OF FRESNO
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12
13 PAUL JOHN DENHAM, Case No. 21CECG00731
14 Plaintiff, DEFENDANTS STUART SHERMAN, C.
CRYER, M. FRITZ, D. COSTA
15 v. MORROW, R. HANDY, R. WHITAKER,
A. BASA, C. BELANTES, O. NAKULIMA,
16 A. PRICE, J. VILLARREAL, AND L.
K. POWELL; STUART SHERMAN; C. VILLASENOR’S
17 CRYER; M. FRITZ; D. COSTA MEMORANDUM OF POINTS &
MORROW; R. HANDY; R. WHITAKER; AUTHORITIES IN SUPPORT OF
18 A. BASA; C. BELANTES; O. NAKULIMA; DEMURRER
A. PRICE; J. VILLARREAL; AND L.
19 VILLASENOR Date: October 5, 2021
Time: 3:30 p.m
20 Defendants. Department: 503
21 Date Action Filed: August 14, 2020
22
STATEMENT OF FACTS
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This demurrer is brought by twelve of the thirteen defendants in this case because
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defendants cannot ascertain what each is being accused of. While strenuously denying liability,
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Defendant Powell is not joining in this demurrer. Powell is not demurring only because the
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complaint’s allegations as to her – while highly disputed – are at least readable. Powell’s decision
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Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint
1 not to join in this demur should not be misinterpreted as any sort of acquiescence to the truth of
2 the charges against her.
3 Plaintiff is a California Department of Corrections and Rehabilitation inmate at the
4 Substance Abuse & Treatment Facility and State Prison in Corcoran. (Pl’s. “Complaint” at 1:18-
5 20). Plaintiff thought that he was having a serious heart issue and was seen at the prison’s clinic.
6 He alleges that defendant Kayleen Powell, RN kept him waiting while she slept and that she then
7 fell asleep during the exam. He did not have a serious problem but was upset by her sleepiness.
8 The complaint identifies 12 defendants in addition to Nurse Powell. This demurrer is
9 brought by 12 of the 13 defendants in this case, specifically defendants Stuart Sherman, C. Cryer,
10 M. Fritz, D. Costa Morrow, R. Handy, R. Whitaker, A. Basa, C. Belantes, O. Nakulima, A. Price,
11 J. Villarreal, and L. Villasenor.
12 The complaint fails to allege which particular defendants, besides defendant Powell, were
13 involved in causing plaintiff harm. Rather than identify particular defendants, the complaint
14 provides string lists of names and alternatively states that “one or more” at other times “two or
15 more” and yet at other times “three or more” among list of named defendants was responsible.
16 APPLICABLE LAW
17 California Code of Civil Procedure §425.10(a)(1) provides: “[a] complaint or cross-
18 complaint shall contain…A statement of the facts constituting the cause of action, in ordinary and
19 concise language.” The fact-pleading requirement of the statute “…obligates the plaintiff to allege
20 ultimate facts that as a whole apprise the adversary of the factual basis of the claim. Davaloo v.
21 State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415.
22 California Code of Civil Procedure §430.10 provides “The party against whom a
23 complaint…has been filed may object, by demurrer or answer as provided in Section 430.30, to
24 the pleading on any one or more of the following grounds…(f) The pleading is uncertain. As used
25 in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”
26 The function of a demurrer is to test the sufficiency of the complaint by raising questions of
27 law. Aragon-Haas v. Family Security Ins. Services, Inc., (1991) 231 Cal.App.3d 232, 238. A
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Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint
1 demurrer as admits all material facts properly pleaded, but not contentions, deductions or
2 conclusions of fact or law. Schmidt v. Foundation Health, (1995) 35 Cal.App.4th 1702, 1706.
3 ARGUMENT
4 The complaint makes a long list of substantive allegations through its first 10½ pages,
5 without specifying which defendant, other than Nurse Powell, did what. Then, the first cause of
6 action each merely incorporates the first 10 plus pages (Causes of Action: First Claim for Relief
7 paragraph 84, page 11). Each of the subsequent causes of action incorporates everything before it
8 while never adding specific as to which defendant engaged in what conduct (Second Claim for
9 Relief paragraph 88, page 12; Third Claim for Relief paragraph 94, page 12; Fourth Claim for
10 Relief paragraph 101, page 13; Fifth Claim for Relief paragraph 107, page 14). Substantively, the
11 causes of action themselves never elucidate the allegations of wrongful conduct, doing little more
12 than alleging harm.
13 I. LIABILITY OF STAFF
14 The accusation against Nurse Powell’s co-defendants Nakulima, Villasenor, Villarreal,
15 Belantes, Basa, Price, Whitaker, and Handy begin on page 7 of the complaint. In paragraph 56,
16 eight defendants are accused of having been informed by on duty custody staff that Powell was
17 sleeping and unable to remain awake. But it’s not all eight. The complaint states only that this
18 group of defendants were “…working inside the Facility ‘E’ clinic and all, or at least two of
19 them, were informed…[that] Powell was sleeping…while on duty as the clinic’s Triage
20 Registered Nurse.” (Id. at 7:22-25, emphasis added).
21 The pattern repeats throughout the complaint. The complaint lacks specificity as to which
22 of the remaining twelve defendants did or who didn’t do what. By pleading each and every
23 accusation as to the remaining defendants in the alternative as to which particular defendant or
24 combination of defendants is being accused, defendants are rendered unable to ascertain whom is
25 being accused of each act.
26 “[A]t least two” (Id. at 8:8, emphasis added) of eight named defendants supposedly knew
27 that Powell was assigned to a critical position. “At least two” of the eight had a duty and the
28 ability to ensure that a competent nurse was available. (Id. at 8:16, emphasis added). “At least
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Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint
1 two” of the eight acted with deliberate indifference to the situation. (Id. at 8:23, emphasis added).
2 All eight allegedly conspired to expose prisoners to grossly inadequate medical care “or at least
3 two of them” did. (Id. at 8:28-9:1, emphasis added). “At least two” among a list of eight
4 defendants violated plaintiff’s constitutional rights. (Id. at 9:8-9, emphasis added). Plaintiff
5 alleges that he suffered harm as a direct and proximate result of the conduct of eight defendants
6 “or at least two” of the eight. (Id. at 9:18-19). “At least two” (Id. at 9:21, emphasis added) among
7 a list of eight defendants violated plaintiff’s constitutional rights while, from that same list of
8 eight “at least two” engaged in willful and deliberate conduct constituting malice and oppression.
9 (Id. at 9:26-28, emphasis added).
10 II. SUPERVISORIAL LIABILITY
11 The complaint lumps defendants Costa Morrow, Cryer, Fritz, Sherman, and Handy in as
12 one group. The complaint asserts that of these five listed defendants they “or at least one of
13 them” hired, supervised, and trained eight other defendants. (Complaint at 10:2-5, emphasis
14 added). Interestingly, plaintiff avers that defendant R. Handy was at once a supervisor, the person
15 who hired, and the trainer of himself. Cf. “alleges that supervisors Defendants…R. Handy…hired,
16 supervised, and trained Defendants…R. Handy.” (Id. at 10:2-5). The complaint then lists nine
17 defendants and states that “at least three of them” performed substandard work. (Id. at 10:6,
18 emphasis added). The complaint accuses three supervisors “or at least one of them” of
19 “personally and actually” knowing or having constructive knowledge of a pattern, trait or custom
20 that a list of nine co-defendants had a pattern, trait, or custom of performing substandard work.
21 (Id. at 10:7-10, emphasis added). “At least one” (Id. at 10:14, emphasis added) among a group of
22 five supervisors willfully failed to follow regulations, defendants are left to speculate as to which
23 one. Among the same list, “at least one” (Id. at 10:20, emphasis added) was a substantial factor in
24 causing plaintiff’s harm. From a list of four, “at least one” negligently hired, supervised, and
25 retained nine defendants. (Id. at 10:23, emphasis added). “At least one” (Id. at 11:3, emphasis
26 added) of five supervisors are alleged to have been the proximate cause of harm while “at least
27 one” (Id. at 11:6, emphasis added) of four from the group violated plaintiff’s constitutional rights.
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Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint
1 The complaint alleges that, along with Nurse Powell, defendants Handy, Whitaker, Basa,
2 Belantes, Nakulima, Price, Villarreal, and Villasenor “or at least three of them, performed
3 substandard work” (Complaint at 10:6-7, emphasis added) and that each of them “had a pattern,
4 trait, or custom of performing substandard work such as sleeping while on duty and failing to
5 refer safety concerns involving clinical performance or conduct…” as required. (Id. at 10:9-12).
6 Paragraph 82 in the complaint underscores the vagueness of plaintiff’s allegations. After
7 reducing the list of five supervisors to four, the complaint states that “at least one” from a list of
8 three from the group was either willful and deliberate “or negligent, and [that this] constitutes
9 malice and oppression.” (Id. at 11:9-11, emphasis added).
10 CONCLUSION
11 Defendants concede that they are able to comprehend what Nurse Powell is being accused
12 of. The same cannot be said of any of the other defendants. Accordingly, defendants pray that
13 their demurrer be sustained.
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Dated: February 27, 2021 Respectfully submitted,
16
XAVIER BECERRA
17 Attorney General of California
LORA CURTIS
18 Supervising Deputy Attorney General
19
20
ROLANDO PASQUALI
21 Deputy Attorney General
Attorneys for Defendants
22 K. Powell, Stuart Sherman, C. Cryer,
M. Fritz, D. Costa Morrow, R. Handy, R.
23 Whitaker, A. Basa, C. Belantes, O. Nakulima,
A. Price, J. Villarreal, and L. Villasenor
24 SF2020303499
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Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint
Preview
1 XAVIER BECERRA, State Bar No. 118517 [Exempt from Filing Fees Pursuant Attorney General of California to Government Code § 6103] 2 LORA CURTIS, State Bar No. 215725 Supervising Deputy Attorney General 3 ROLANDO PASQUALI, State Bar No. 106836 Deputy Attorney General E-FILED 4 455 Golden Gate Ave., Suite 11000 3/19/2021 12:34 PM San Francisco, CA 94102 Telephone: Superior Court of California 5 (415) 510-3533 County of Fresno Fax: (415) 703-5480 By: I. Herrera, Deputy 6 E-mail: Rolando.Pasquali@doj.ca.gov Attorneys for Defendants 7 K. Powell, Stuart Sherman, C. Cryer, M. Fritz, D. Costa Morrow, R. Handy, R. Whitaker, A. Basa, C. 8 Belantes, O. Nakulima, A. Price, J. Villarreal, and L. Villasenor 9 CALIFORNIA SUPERIOR COURT 10 COUNTY OF FRESNO 11 12 13 PAUL JOHN DENHAM, Case No. 21CECG00731 14 Plaintiff, DEFENDANTS STUART SHERMAN, C. CRYER, M. FRITZ, D. COSTA 15 v. MORROW, R. HANDY, R. WHITAKER, A. BASA, C. BELANTES, O. NAKULIMA, 16 A. PRICE, J. VILLARREAL, AND L. K. POWELL; STUART SHERMAN; C. VILLASENOR’S 17 CRYER; M. FRITZ; D. COSTA MEMORANDUM OF POINTS & MORROW; R. HANDY; R. WHITAKER; AUTHORITIES IN SUPPORT OF 18 A. BASA; C. BELANTES; O. NAKULIMA; DEMURRER A. PRICE; J. VILLARREAL; AND L. 19 VILLASENOR Date: October 5, 2021 Time: 3:30 p.m 20 Defendants. Department: 503 21 Date Action Filed: August 14, 2020 22 STATEMENT OF FACTS 23 This demurrer is brought by twelve of the thirteen defendants in this case because 24 defendants cannot ascertain what each is being accused of. While strenuously denying liability, 25 Defendant Powell is not joining in this demurrer. Powell is not demurring only because the 26 complaint’s allegations as to her – while highly disputed – are at least readable. Powell’s decision 27 28 1 Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint 1 not to join in this demur should not be misinterpreted as any sort of acquiescence to the truth of 2 the charges against her. 3 Plaintiff is a California Department of Corrections and Rehabilitation inmate at the 4 Substance Abuse & Treatment Facility and State Prison in Corcoran. (Pl’s. “Complaint” at 1:18- 5 20). Plaintiff thought that he was having a serious heart issue and was seen at the prison’s clinic. 6 He alleges that defendant Kayleen Powell, RN kept him waiting while she slept and that she then 7 fell asleep during the exam. He did not have a serious problem but was upset by her sleepiness. 8 The complaint identifies 12 defendants in addition to Nurse Powell. This demurrer is 9 brought by 12 of the 13 defendants in this case, specifically defendants Stuart Sherman, C. Cryer, 10 M. Fritz, D. Costa Morrow, R. Handy, R. Whitaker, A. Basa, C. Belantes, O. Nakulima, A. Price, 11 J. Villarreal, and L. Villasenor. 12 The complaint fails to allege which particular defendants, besides defendant Powell, were 13 involved in causing plaintiff harm. Rather than identify particular defendants, the complaint 14 provides string lists of names and alternatively states that “one or more” at other times “two or 15 more” and yet at other times “three or more” among list of named defendants was responsible. 16 APPLICABLE LAW 17 California Code of Civil Procedure §425.10(a)(1) provides: “[a] complaint or cross- 18 complaint shall contain…A statement of the facts constituting the cause of action, in ordinary and 19 concise language.” The fact-pleading requirement of the statute “…obligates the plaintiff to allege 20 ultimate facts that as a whole apprise the adversary of the factual basis of the claim. Davaloo v. 21 State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415. 22 California Code of Civil Procedure §430.10 provides “The party against whom a 23 complaint…has been filed may object, by demurrer or answer as provided in Section 430.30, to 24 the pleading on any one or more of the following grounds…(f) The pleading is uncertain. As used 25 in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” 26 The function of a demurrer is to test the sufficiency of the complaint by raising questions of 27 law. Aragon-Haas v. Family Security Ins. Services, Inc., (1991) 231 Cal.App.3d 232, 238. A 28 2 Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint 1 demurrer as admits all material facts properly pleaded, but not contentions, deductions or 2 conclusions of fact or law. Schmidt v. Foundation Health, (1995) 35 Cal.App.4th 1702, 1706. 3 ARGUMENT 4 The complaint makes a long list of substantive allegations through its first 10½ pages, 5 without specifying which defendant, other than Nurse Powell, did what. Then, the first cause of 6 action each merely incorporates the first 10 plus pages (Causes of Action: First Claim for Relief 7 paragraph 84, page 11). Each of the subsequent causes of action incorporates everything before it 8 while never adding specific as to which defendant engaged in what conduct (Second Claim for 9 Relief paragraph 88, page 12; Third Claim for Relief paragraph 94, page 12; Fourth Claim for 10 Relief paragraph 101, page 13; Fifth Claim for Relief paragraph 107, page 14). Substantively, the 11 causes of action themselves never elucidate the allegations of wrongful conduct, doing little more 12 than alleging harm. 13 I. LIABILITY OF STAFF 14 The accusation against Nurse Powell’s co-defendants Nakulima, Villasenor, Villarreal, 15 Belantes, Basa, Price, Whitaker, and Handy begin on page 7 of the complaint. In paragraph 56, 16 eight defendants are accused of having been informed by on duty custody staff that Powell was 17 sleeping and unable to remain awake. But it’s not all eight. The complaint states only that this 18 group of defendants were “…working inside the Facility ‘E’ clinic and all, or at least two of 19 them, were informed…[that] Powell was sleeping…while on duty as the clinic’s Triage 20 Registered Nurse.” (Id. at 7:22-25, emphasis added). 21 The pattern repeats throughout the complaint. The complaint lacks specificity as to which 22 of the remaining twelve defendants did or who didn’t do what. By pleading each and every 23 accusation as to the remaining defendants in the alternative as to which particular defendant or 24 combination of defendants is being accused, defendants are rendered unable to ascertain whom is 25 being accused of each act. 26 “[A]t least two” (Id. at 8:8, emphasis added) of eight named defendants supposedly knew 27 that Powell was assigned to a critical position. “At least two” of the eight had a duty and the 28 ability to ensure that a competent nurse was available. (Id. at 8:16, emphasis added). “At least 3 Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint 1 two” of the eight acted with deliberate indifference to the situation. (Id. at 8:23, emphasis added). 2 All eight allegedly conspired to expose prisoners to grossly inadequate medical care “or at least 3 two of them” did. (Id. at 8:28-9:1, emphasis added). “At least two” among a list of eight 4 defendants violated plaintiff’s constitutional rights. (Id. at 9:8-9, emphasis added). Plaintiff 5 alleges that he suffered harm as a direct and proximate result of the conduct of eight defendants 6 “or at least two” of the eight. (Id. at 9:18-19). “At least two” (Id. at 9:21, emphasis added) among 7 a list of eight defendants violated plaintiff’s constitutional rights while, from that same list of 8 eight “at least two” engaged in willful and deliberate conduct constituting malice and oppression. 9 (Id. at 9:26-28, emphasis added). 10 II. SUPERVISORIAL LIABILITY 11 The complaint lumps defendants Costa Morrow, Cryer, Fritz, Sherman, and Handy in as 12 one group. The complaint asserts that of these five listed defendants they “or at least one of 13 them” hired, supervised, and trained eight other defendants. (Complaint at 10:2-5, emphasis 14 added). Interestingly, plaintiff avers that defendant R. Handy was at once a supervisor, the person 15 who hired, and the trainer of himself. Cf. “alleges that supervisors Defendants…R. Handy…hired, 16 supervised, and trained Defendants…R. Handy.” (Id. at 10:2-5). The complaint then lists nine 17 defendants and states that “at least three of them” performed substandard work. (Id. at 10:6, 18 emphasis added). The complaint accuses three supervisors “or at least one of them” of 19 “personally and actually” knowing or having constructive knowledge of a pattern, trait or custom 20 that a list of nine co-defendants had a pattern, trait, or custom of performing substandard work. 21 (Id. at 10:7-10, emphasis added). “At least one” (Id. at 10:14, emphasis added) among a group of 22 five supervisors willfully failed to follow regulations, defendants are left to speculate as to which 23 one. Among the same list, “at least one” (Id. at 10:20, emphasis added) was a substantial factor in 24 causing plaintiff’s harm. From a list of four, “at least one” negligently hired, supervised, and 25 retained nine defendants. (Id. at 10:23, emphasis added). “At least one” (Id. at 11:3, emphasis 26 added) of five supervisors are alleged to have been the proximate cause of harm while “at least 27 one” (Id. at 11:6, emphasis added) of four from the group violated plaintiff’s constitutional rights. 28 4 Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint 1 The complaint alleges that, along with Nurse Powell, defendants Handy, Whitaker, Basa, 2 Belantes, Nakulima, Price, Villarreal, and Villasenor “or at least three of them, performed 3 substandard work” (Complaint at 10:6-7, emphasis added) and that each of them “had a pattern, 4 trait, or custom of performing substandard work such as sleeping while on duty and failing to 5 refer safety concerns involving clinical performance or conduct…” as required. (Id. at 10:9-12). 6 Paragraph 82 in the complaint underscores the vagueness of plaintiff’s allegations. After 7 reducing the list of five supervisors to four, the complaint states that “at least one” from a list of 8 three from the group was either willful and deliberate “or negligent, and [that this] constitutes 9 malice and oppression.” (Id. at 11:9-11, emphasis added). 10 CONCLUSION 11 Defendants concede that they are able to comprehend what Nurse Powell is being accused 12 of. The same cannot be said of any of the other defendants. Accordingly, defendants pray that 13 their demurrer be sustained. 14 15 Dated: February 27, 2021 Respectfully submitted, 16 XAVIER BECERRA 17 Attorney General of California LORA CURTIS 18 Supervising Deputy Attorney General 19 20 ROLANDO PASQUALI 21 Deputy Attorney General Attorneys for Defendants 22 K. Powell, Stuart Sherman, C. Cryer, M. Fritz, D. Costa Morrow, R. Handy, R. 23 Whitaker, A. Basa, C. Belantes, O. Nakulima, A. Price, J. Villarreal, and L. Villasenor 24 SF2020303499 25 26 27 28 5 Memorandum of Points and Authorities in Support of Defendants’ Demurrer to Complaint