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EDML'NDG. BRO W JR .Attorney G eneral of C aliforniaSTEPHEN. ACQUISTOSupervising Deputy A ttorney GeneralANTHONY. O'BRIENDeputy Attorney General ,
State Bar No. 23265 01300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Telephone: (916) 323-6879Fax: (916) 324-8835E-mail: Anthony .OBrien@ doj .ca.gov
Attorneys for Defen dants E dinund G. Brow n Jr.,Attorney General, and Debra Bowen, Secretaiy ofState
SUPER IOR COUKT OF THE STATE OF CALIFORNLA
COUNTY OF SACRAMENTO
PAMELA BARNETT, 1 Case N o. 34-201 0-00077415
Plaintiff. NOTICE OF DEMURRER ANDDEMURRER TO PLAINTIFF'SCOMPLAINT
DAMON JERRELL DUN N, ETAL., I (Code Civ. Proc., 5 430.10, subd (e))
-Chang
Trial Date: Not Yet SetAction Filed: M ay 10, 201 0
Defendants.
TO PAMELA B ARN ETT, PLAINTIFF PRO SE:
PLEASE TAKE N OTICE that on October 25, 2010, at 9:00 a.m.. or as soon thereafter as
the matter may be hea rd in D epartment 54 of the above-entitled court, located at 800 9th S treet,
Sacramento, Califorma, defendants Edm und G. Brown Jr. and Debra Bow en will dem ur to the
Com plaint of Plaintiff Pamela Bam ett.
Date: October 25,201 0Time: 9:00 a.m.Dept: 54Judge: The Honorable Shelleyanne
Notice of Demumrr and Demurrer t o P l a i n l i f f s Complaint (34-2010-00077415)
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Th e motion will be based on this notice of dem urrer, the demurrer, an d the memorandum of
points and authorities.
DEMURRER
Defendan ts Brown and Bowen demur to Barnett's Complaint on the grounds that the
pleading does not state facts sufficient to constitute a cause of action. (Code C iv. Proc., 5 430.10,
suhd . (e).) M ore specifically, Barnett's C omplaint fails to state a sufficient cause of action
because D am on Du nn qualified as an eligible candidate for Secretary of State, and the Complaint
does not allege tha t Brown or Bowen defrauded Bam ett or breached their duties during the
election process. Moreover, Barnett's requested relief-including remov ing Dunn , Bowen, and
B row n f ~ o mhe ballot-is untimely and would substan tially interfere wi th the conduct of the
election.
Pursuant to Local rule 2.04, the court will mak e a tentative ruling on the merits of this
matter by 2: 00 p.m., the court day before the hearing. Yo u may ac cess and download the court's
ruling from the court's website at httu:iim.saccourt.ca.sov. If you do not have online access,
you m ay obtain the tentative ruling over the telephone by calling (916) 874-8142 and a deputy
clerk will read th e ruling to you. If you wish to request oral argum ent, you must contact the
courtroom clerk at (916) 874-7858 Pe pa rt m en t 53) or (916) 874-7848 (Department 54) and the
opposing party before 4:00 p.m. the court day before th e hearing. If you d o not call the court and
the opposing party by 4:00 p.m. on the court day before the hearing, no hearing will be held.
Dated: June 11, 2010 Respectfully Submitted,
E D ~ D. BROW N R.Attorney General of CaliforniaSTEPHEN. ACQUISTOSupervising Deputy A ttorney General
ANTH&V . O'BRIENDeputy Attom ey GeneralAttorne.vs for Defenda nts Edm und G.Brown Jr., Attorney General, and DebraBowe n, Secretaly of State
2
-otice of Demuner an d Demurrer to Plaint i ff s Complaint (34-2010-00077415)
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DECLARATION O F SERVICE BY E-MAIL A ND U.S. MAIL
Case Name: Pamela Barnett v. Damon Jerrell Dunn, et al.
No.: 34-201 0-00077415
I declare:
I am employed in the Office of the A ttorney General, which is the office of a mem ber of the
California State Bar, at which mem ber's direction this service is made. I a m 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailin g with the United
States Postal Service. Ln accordance w ith that practice, correspondence placed in the internal
mail collection system at the O ffice of the Attorney General is deposited wi th the United States
Postal Service that same day in the ordinary course of business.
On June 11.20 1 0, I served the attache d NOTICE OF DEMURRER AND DEMURRER TO
PLAINTIFF'S COMPLAINT; MEMO RANDU M OF POINTS AND AUTHOR ITIES OFDEMURRER TO PLAINTIFF'S COMPLAINT; REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDAYT'S DEMURRER by placing a true copy thereof enclosed in a
sealed envelope with postage thereon fu lly prepaid, in the internal mail collection system at the
Office of the Attorney General at 1 300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA
94244-2550, addressed as follow s:
Brian T. Hildreth
Pamela Barnett Bell, McAndrews & Hiltachk, LLP
2541 Warrego Way 455 C apitol Ma ll, Suite 801
Sacramento, CA 95826 Sacramento, CA 95814
Telephone: (415) 846-7170 Telephone: (91 6) 442-7759
Pla~iltzffinPro Se Fax : (916) 442-7759E-Mail: [email protected]
Attornqvs for Defendant Damo n Dunn
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on June 11 ,20 10 , at Sacram ento, California.-Brooke C. C arothers
Declaranth c . 7 h 2 u .
Signature
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EDMUND. BROWNR.I Attorney General of California
STEPHEN. ACQUISTOSupervising Deputy Attorney GeneralANTHONY. O'BRIENDeputy Attorney General
State Bar No. 2326501300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Telephone: (916) 323-6879Fax: (916) 324-8835E-mail: [email protected]
Attor~zeys,forDefendants Edmund G. Brown Jr.Attorn ev General, and Debra Bowen, Secretary ofState
I1 SUPERIOR COURT OF THE STATE OF CALIFORNL4
I1 COUNTY OF SACRAMENTO
I PAMELA BARNETT, I Casc No. 34-2010-00077415
Plaintiff,
v.
DAMON JERRELLDUNN, ET AL.,
Defendants.
MEMORANDUM OF POINTSANDAUTHORITIES IN SUPPORTOFDEMURRER TO PLAINTIFF'S
COMPLAINT(Code Civ. Proc. 9 430.10, subd. (e))
Date: October 25,2010Time: 9:00 a.m.Dept: 54Judge: The Honorable Shelleyanne
ChangTrial Date: Not Yet SetAction Filed: May 10,2010
11 Dernumer to Plaintiffs Complaint (31-2010-000?7415)
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TABLE OF CONTENTS
Introduction .............................................................................................................................Background ...................................................................................................................Standard of Review ......................................................................................................................... 3
Ar y m e n t ......................................................................................... 4
I. Defendants are entitled to demurrer because Bamett's requested reliefwould substantially interfere with the conduct of the election. ..............................
E. Barnett ttf.;!ed to sta te z claim for rel ie ibe c~ use urn s~t i sf ie dheeligibility requirements to run as a republican candidate for Secretary ofState 6
111. The Court should sustain Defendants' demurrer as to Bamett's fraud claimbecause Defendants fulfilled all duties in ensuring that Dunn's candidacy
complied with election laws 8A. Bow en did not breach any duty to Bamett or defraud her in
verifying Dunn's eligibility for candidacy. ...............................................B. Brown did not breach any duty owed to Bam ett, because, as
Attorney General, he had no statutory duty to enforce election laws. ........9Conclusion ..........................................................................................................0
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TABLE OF AUTHORITIES
Page(s)CASES
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826 5
Assembly v. Deukmejian, 1(1982) 30 Cai. 3d 638 ........................................................................................... I
Blake v. Kirwan
(1985) 39 Cal.3d 311 . ....................................................................Cantu
v.
Resolution Trust COT.(1992) 4 Cal.App.4th 857 ................................................................................................., 6
Chambers v.Ashley
(1939) 33 Cal.App.2d 390 6
Cooke v. Superior Court
(1989) 213 Cal.App.3d 401 .......................................................................................................Friedland v. City of Long B each
(1998) 62 Cal.App.4th 835 5
G e n t v v. eBay, Inc.(2002) 99 Cal.App.4th 816 .................................. ... .........................................
GulfIns. Co. v. TIG Ins. Co.
(2001) 86 Cal.App.4th 422 :..................... .. .. 5
Minsky v. City o fL os Angeles
(1974) 11 Cal.3d 11.3 .........................................................Moore v. Conliffe
(1994) 7 Cal.4th 634 .......................................... 5
Strucke v.Farquar
(1942) 20 Cal. 2d 82 6
I l l
I l l
I l l
.11
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~ u ~ ~ oDemurre1 to Plaintiffs Complaint (34-2010-00077415)
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STATUTES
California Elections Co de $6 8001(a) and 185 01 3
Code C iv. Proc., 5 430.1 0, su bd. (e) .. 5
Code C iv. Proc., 5 430.30, subd . (a) ............................................................................. 5
Elec. Cod e 5 8001, subd. (a) ......................................................................................... 3, 8
Elec. Code 5 8120 .................................................................................................... , 10
Elec. Cod e 6 13314, subd. (a)(l) ..................................................................................
Elec. Code 5 1331 4, subd. (a)(2)(B) .............................................................................. 6, S
Election Laws. ..........................................................................................................................., 11
Elections Cod e 5 5 100 ............... . ................................. .........................9
Elections Code 5 8001 .... .................................................... , 7, 9, 10
Elections Co de 8001(b) ............................................................................................................, 9
. . .Elections Co de 5 8001, subd~vlslona) .......................................................................................
Elections Cod e $ 5 8070, 8082 ....................................................................................................0
Evid. Code 5 452 .... ................................................................
Evid. Code 5 452, subd . (c).............................................................................................. 4
Fla. Stat. 5 98.065 , subd. (4)(c).......................................................................................
Gov. Code 5 12172.5 .... .................................................... 0, 11
OTHERAUTHORITIES
Cal. Co nst. art. 11 5 2.5 ...................................... . . ................................................... 6, 8
. .California Constltut~on ...................................................................... 6
Memorandum of Points and Authorities in Support of
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INTRODUCTION
In this complaint, Plaintiff Pamela Bamett seeks an eleventh-hour order to remove Damon
Durn from the ballot for Secretary of State, due to her unsupported and erroneous contention that
Du rn has not been affiliated with the Republican Party for a sufficient amount of time before
declaring his candidacy, and because Dunn did not complete the prior registration section when
registering to vote in California in March 2009. Barnett also seeks to remove Secretary of State
Debra Bowen and Attorney Generai Edmund ti. Brown Jr. from tne General Election haliot,
claiming that they, along with Dunn, violated California Elections Code 9 5 8001(a) and 18501 by
allowing Dunn to declare his candidacy without investigating his eligibility for candidacy.
The Court should sustain defendants Brown and Bowen's dem mer without leave to amend.
The issuance of Barnett's requested relief-rders to remove Dunn and Bowen from the
Secretary of State ballots, and Brown from the Governor's ballot-would substantially interfere
with the proceeding of the election. The primary elections ended on June 8, 2010, and the parties
have nominated candidates for the Secretary of State and Governor races. Barnett's requested
relief, therefore, would result in the denial of votes cast for all three of these candidates.
Even if Bamett's complaint had been timely, the Court should still sustain the demurrer
because judicially noticed facts show that Dunn qualified as an eligible candidate for the
Republican nomination for Secretary of State. Before declaring his candidacy, Dunn needed to
have been affiliated with the California Republican party for at least three months, and not
affiliated with any other party for at least twelve months. (Elec. Code 5 8001, subd. (a).) Dunn
cleared both of these requirements. He registered as a Republican nearly twelve months before
declaring his candidacy for Secretary of State in March 2010. And his Florida voter
registration--which showed his affiliation with the Democratic Party-expired five years before
declaring his candidacy.
Defendants are also entitled to dismissal because Barnett's complaint fails to state any facts
showing that defendants breached their duties in the processing of Dunn's declaration for
candidacy. The Secretary of State fulfilled her duties by not only presenting Durn as one of the
-- --emorandum of Pomts and A uthor it~esm Support of
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1 certified candidates for Secretary of State, but also confirming Dunn's eligibility after Bamett had
requested an investigation. As Attorney General, Brown has no statutory duty to investigate
Dunn's eligibility, especially when the Secretary of State has not found any reason to refer the
matter to the Attorney General. And Barnett's complaint fails to raise any facts showing that any
of the defendants intentionally concealed or misrepresented information regarding Dunn's
eligibility for Secretary of State. For these reasons, the Court should sustain Defendants'
demurrer without leave to amend.
BACKGROUND
Damon Dunn is a Republican candidate for California Secretary of State. (Req. for Judicial
Notice, Ex. A,)'
In 1999, Dunn registered to vote in Florida and stated his affiliation with the Democratic
Party. (Compl. Exh. D.)
Under Florida law, a resident is placed on the inactive voter list when he or she does not
respond to a mailed address confirmation sent by the county supervisor of elections. (Fla. Stat. 5
98.065, subd. (4)(c).) The voter is then removed from the statewide voter registration system if
he or she does not vote for two consecutive federal elections, and fails to update his or her voter
registration information. (Ibid.)
In March 2002, the Duval County, Florida Supervisor of Elections converted Dunn's voting
status to inactive because Dunn did not have any voting history, and did not respond to mail sent
to his Jacksonville residence. (Req. for Judicial Notice, Exh. B.) Dunn had no further activity on
his Florida voting record, and on June 6,2005, the Duval County Elections Supervisor converted
D m o an ineligible voter in Florida, thus requiring Dunn to reregister if he wanted to vote in
Florida. (Req. for Judicial Notice, Ex. B.)
On March 13,2009, Dunn registered to vote in California and stated his affiliation with the
1 Republican Party. (Compl., Exh. A.) On March 10,2010, Dunn declared his candidacy for the
I ' The official acts ofthe legislative, executive, and judicial departments of any state ofthe United States may be judicially noticed. (Evid. Code 5 452, subd. (c).) (See Cooke v.Supevror Couvt (1989) 213 Cal.App.3d 401,416 [records of a county are properly noticed under' Evid Code 452 (official acts of the state), since counties are legal subdivisions ofthe state].)--
emorandum of Points and Authorities In Support o f
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Republican nomination for California Secretary of S tate. (Req. for Judicial Notice, Exh. A,)' As
part of his D eclaration of Cand idacy, the Orang e County, C alifornia Registrar of Voters certified
that Dunn: (1 ) had been affiliated with the California Republican P arty for at least three months
before filing his declaration for candidacy. (Req. for Judicial Notice, Exh . A ,) before declaring
his candidacy; and (2 ) wa s not affiliated with any other political party for twelve On M arch 30,
2010, Jerry Hollan d, S upervisor of Elections for Duv al Coun ty, Florida, issued a letter to the
California Secretar y of State's office stating that Dun n had be come ineligible to vote in Florida in
June 2005, due to his inactivity and failure to respond to m ailings from the Office of the
Supervisor of Elections. (Req. for Judicial Notice, Exh. B.)
On M ay 12, 201 0, the Secretary of State's Office responded to a comp laint filed by Bamett
regarding D m ' s eligibility. (Req. for Judicial Notice, Exh. c . ) ~ n the letter the Secretary of
State's Office noted that D unn's registration as a Democrat in Florida e xpired in June 2005, and
that he was not affiliated w ith any party when he registered to vote in California in March 2 009.
(Req. for Judicial Notice, Exh. C.) The Secretary of S tate's Office also noted that there were no
criminal sanction s for Dunn 's failure to complete the section on prior registration in his voter
registration card. (Re q. for Judicial Notice, Exh . C.)
STANDARD OF REVIEW
A dem urrer tests the sufficiency of the com plaint; that is, whether it states facts sufficient to
constitute a cause of action. (Code Civ. Proc., 5 430.10, sub d. (e); Fviedland v. City of loi zg
Beach (1998) 62 Cal.A pp.4th 835, 841-842.) To mak e this determination, the trial court m ay
consider all material facts pleaded in the comp laint and matters o f which it may take judicial
In her co mplaint, Barnett incorrectly states that Du nn d eclared his candidacy onNovem ber 5,2 00 9, when he submitted a Candidacy Intention Statement. (Cornpl. 7 13, Exh. B.)As opposed to the Declaration of Candidacy, which includes an affidavit showing the candidate'saffiliation with his o r her political party, as required under E lections C ode 5 8001(b), theCand idate Intention Statement is not mandated by Elections Code' 5 8001.
The Court ma y take judicial notice of any document pub lished, recorded, or filed by anyexecutive departme nt. (See Aguilar v. Atlantic Richfieid Co. (2001) 25 C al.4th 826, 84 2 n.3 ["wemay take judicial notice of the report of a state executive office r as reflecting an 'official act"'](citation omitted).)
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notice; it may not consider contentions, deductions or conclusions of fact or law. (Code Civ.
Proc., § 430.30, subd. (a); Moore v. Conlife (1994) 7 Cal.4th 634, 638.)
"[Alny allegations that are contrary to the law or to a fact of which judicial notice may be
taken will be treated as a nullity." (Gulfins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 429.)
A party may not avoid demurrer by suppressing facts, including those that are judicially
noticeable, which prove the pleaded facts false. (Cantu v. Resolution Trust Colp. (1992) 4
Cal.App.4th 857, 877.)
Where the complaint's allegations or judicially noticeable facts reveal the existence of an
affimlative defense, the plaintiff must allege specific facts that avoid the apparent defense.
(Gentry v. eBay, inc. (2002) 99 Cal.App.4th 816, 824.) Absent such allegations, the complaint is
subject to demurrer for failure to state a cause of action. (Ibid.)
The Court should sustain a demurrer with leave to anlend if "there is a reasonable
possibility that a defect in the complaint can be cured by amendment or that the pleading liberally
construed can state a cause of action." (Minsb v. City ofLos Angeles (1974) 11 Cal.3d 113,
1 18.) The Court, however, may sustain a demurrer without leave to amend if there is no
"reasonable possibility" that the complaint's defect can be cured by amendment. (Blake v.
Kinvan (1 985) 39 Cal.3d 3 11, 3 18.) "[A] trial court does not abuse its discretion when it sustains
a demurrer without leave to anlend if either (a) the facts and the nature of the claims are clear and
no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful
attempts to plead that the plainbffcannot state a claim." (Cantu v. Resolution Trust Corp. (1992)
4 Cal.App.4th 857, 890.)
ARGUMENT
State election laws prohibit the removal of candidates from the election ballot when such
actions are untimely, moot, and would interfere with the conduct of the election. The California
Constitution provides that "[a] voter who casts a vote in an election in accordance with the laws
of this State shall have that vote counted." (Cal. Const. art. 11, 5 2.5.) The Elections Code4 --
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prevents the issuance or w i t s that will "substantially interfere with th e conduct o f the election."
(Elec. Code 5 13314, subd. (a)(2)(B).) And courts have denied untime ly actions to omit names
from the ballot when the election had already begun, o r had since ended . (See Stracke v. Farquur
(1942) 20 Cal. 2d 82 [refusing to grant a petition for ape rem pto ry writ of man date to compel the
omission of the names of seven persons fiom the ballot because "the ballot already had been
printedand distributed to certain voters"]; see also Chambers v. Ashley (1939) 33 Cal.App.2d
390, 391 [denying as mo ot w rit to keep the name of a judge off of the primary election ballot
since the primary election had already passed].)
Here, Bam ett's requested relief-removal of Dunn from the primary ballot, and removal of
Bowen and Brown from the general election ballots-is similarly moo t, and wou ld greatly
interfere with the conduct of this ele~tion.~he June 8 primary election has passed, and the
parties have selected their nominees for Secretary of State and Governo r. (Req. for Judicial
Notice, Exh. D.) Therefore, any attempt to strike Dunn, Bowen , and Bro wn fiom the ballot at this
stage of the election will sub stantially interfere with the primary e lectio n, and result in the
nullification of votes cast for all three of these candidates. For this reaso n, the C ourt should deny
Bamett's request for relief.
Moreover, Bame tt unreasonably delayed in filing this complaint until May 10,2 010 , only
29 days before the primary election. (Compl. 1: Req. for Judicial Notice, E x. D.) Bamett relies
solely on the Dunn 's Florida and C alifornia voter registration forms , and Can didate Intention
Statements as eviden ce that Dunn failed to meet the eligibility requiremen ts und er Elections Code
5 8001. (Com pl. Exhs . A, B , D.) Dun n filed the last of these forms-the Can didate Intention
Statement-in November 2009--well before April 1,2 01 0, when Bo we n submitted Dunn's name
as among the certified candidates for Secretary of State. (Compl. Ex h. B; Req. for Judicial
Notice, Exh. D; Elec. Code 4 8120.)
Bam ett brought this actlon as a complaint, even though a w rit of manda te would ha vebeen the more ap propna te means for relief. (See Elec. Code 5 133 14, subd. (a )(l ) [prescribing awrit of mandate as the so le vehicle fo r challenging a violation o f state election law by anelector].) Since the relief Bam ett reques ts more closely resembles t he relief provlded through awrit of mandate, defend ants refer to election laws regarding writ relief.
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Barnett could have brought this legal challenge before the Secretary submitted the certified
list of candidates. She could have also brought this challenge before persons in the military and
overseas began voting (April 9, 2010), and before counties began mailing sample ballots (April
29, 2010). (Req. for Judicial Notice, Ex. D.) Barnett, however, did not file this complaint until
after these critical election events already took place. Moreover, Barnett offers no explanation for
her inexcusable delay in filing this lawsuit.
The lateness of Bamett's petition is particularly egregious because the primary election
ended on June 8,2010. Any decision at this time that affects the eligibility of Dunn, Bowen, and
Brown to be on the primary or general election ballots would nullify the votes cast for these
candidates-a result that violates the California Constitution's specific provision requiring the
counting of every lawfully cast vote, and would result in the substantial interference with the
conduct of the election. (Cal. Const. art. 11, 5 2.5; Elec. Code 5 13314, subd. (a)(2)(B).) For this
reason, the Court should deny Bamett's request relief, and sustain this demurrer without leave to
amend.
11. BARNETTAILEDO STATE CLAIMOR RELIEFBECAUSEUNNSATISFIEDHEE~ I c r s I L r r v EQUIREMENTSO RUNAS A REPUBLICANCANDIDATEORSECRETARYF STATE.
Under California Elections Code, a candidate for a partisan office cannot file a declaration
for candidacy unless: (1) he has shown by affidavit to be affiliated with the political party for at
least three months before presenting his declaration of candidacy for that party's nomination; and
(2) he has not been registered as affiliated-with another "qualified political party" within twelve
months immediately prior to the declaration. (Elec. Code 5 8001, subd. (a).)
Here, the Court should sustain the demurrer because Dunn satisfied the Election Code's
requirements before filing his declaration for candidacy as Secretary of State. First, Dunn
satisfied the three-month requirement because he registered with the Republican Party on March
13,2009, nearly twelve months before he declared h s candidacy. (Compl. Exh. A; Req. for
Judicial Notice, Exh. A,)
Second, Barnett presents no facts (or even allegations) that Dunn was a member of any
other political party for twelve months before he declared his candidacy for Secretary of State.6-
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To the contrary, all available records show that Du nn's only other political affiliation-with the
Florida Demo cratic Party--expired in 2005 after Dunn failed to vote in two consecutive federal
elections. (Req . for Judicial Notice, Exh. B.) So Dunn satisfied the candidacy eligibility
requirements outlined in Elections Code 5 8001, subdivision (a). Secre tary of State Bowen,
therefore, did not violate the Election Code by allowing Dunn's candidacy to proceed. ' For this
reason, the Court should sustain Defendants' demurrer without leave to amend.
Barn ett also argues that the Secretary of Sta te's office failed to respond to inquiries
regarding Dun n's eligibility for candidacy and alleged failure to provide prior voter registration
information when registering to vote in California in March 2009. (Compl. 77 30, 41, 47-50.)
Ba m ett's contentions are false. The Secretary of State investigated and responded to Barn ett's
claims regarding Dun n's eligibility on Ma y 1 2, 20 10. (Req. for Judicial Notice, Exh. B, C.) In its
response, the Sec retary of State's office noted that: (1) Dun n met the eligibility requirements of
Elections C ode 5 8001; and (2) there was no evidence show ing that Dunn intentionally omitted
information o f prior registration when he registered to v ote in California. (Req. for Judicial
Notice, Exh. C .) Moreover, none of Barnett's allegations show that Bowen concealed any facts
regarding Dunn 's eligibility to run for Secretary of State. Th e Court, therefore, should sustain
this demurrer without leave to amend.
'Mo reover, Du nn's past affiliation with the Florida Dem ocratic Party does not qualify as
affiliation with a "qualified po litical party" as defined und er the California Elections Code.
Elections C ode 5 5100 defines a "qualified political party" as ap ar ty that fulfills any o ft he
following conditions related to California elections:
(1) the p arty polled at least 2 percent of the vote in the last gubernatorial election;
(2) the total num ber of voters registered with the party on or before the 135th day beforethe election equals at least 1 percent of the entire vote in the last gubernatorial
election; or(3 ) the party filed a petition with the S ecretary of State, on or before the 135th day before
the primary, with signatures of voters equal to 10 percent of the of the state's entire
vote for the previous gubernatorial election. (Elec. Code 5 5100.)
Barn ett's complaint doe s not present any facts showing that the Florida Democratic Party eversatisfied any of these requirements prior to the June 8, 2010 primary election. Therefore, theFlorida Dem ocratic Pa rty is not a "qualified political party" as defined under Elections Code 88001(b), and D unn's past affiliation with that party would not disqualify his candidacy forSecretary of State under any circumstances.
--Memorandum of Points and Authorities m Support of
Demurrer to Plaintif fs Complaint (34-2010-00077415)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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111. THECOURT HOULDUSTAIN EFENDANTS'EMURRERS TO BARNETT'SRAUDCLAIM ECAUSEEFENDANTSL F I L L E D LLDUTIESN ENSURINGHAT DUNN'SCANDIDACYOMPLIEDITH ELECTIONAWS.
A. Bowen Did Not Breach Any Duty to Barnett or Defraud Her in VerifyingDunn's Eligibility for Candidacy.
As the chief elections officer of the state, the "Secretary of State shall see that elections are
efficiently conducted and that state election laws are enforced." (Gov. Code 5 12172.5.) To
determine if there has been any violation of election laws, the Secretary of State may examine
ballots, vote-counting computer programs, "and any other records of elections officials." (Ibid.)
If the Secretary of State finds that any election laws are not being enforced, he or she "shall call
the violation to the attention of the district attorney of the county or to the Attorney General."
(Ibid.)
With respect to the determination of candidate eligibility, the Secretary of State is
responsible for: (1) filing nomination documents received from the county elections officials
(Elections Code 55 8070, 8082); and (2) transmitting to each county elections official a certified
list of candidates eligible for the direct primary. (Elec. Code Ej 8120.)
Barnett claims that Secretary of State Bowen breached her fiduciary duties, but fails to
allege any facts showing a breach of such duties. (Compl. 77 55-56.) To the contrary, Bowen
fully executed her obligation to enforce the election laws, by verifying Durn' s candidacy after
Orange County elections officials certified his eligibility. (Req. for Judicial Notice. Exh. A). In a
letter response to Barnett's claims against Dunn's candidacy, the Secretary of State's office
confirmed that Dunn's met the affiliation requirements under Elections Code 5 8001. (Req. for
Judicial Notice, Exh. B, C.) Secretary of State Bowen upheld her statutory duties in ensuring that
Durn 's candidacy complied with election laws. For these reasons, the Court should sustain
Defendants' demurrer.
Bamett also alleges that Bowen defrauded her by allowing Dunn's campaign to proceed,
even though Dunn's voter registration form does not include information on prior registration.
(Compl. 77 55-56.) Bamett, however, provides no facts showing that the Secretary of State
intentionally concealed or misrepresented any facts regarding Dunn's candidacy. nor does she8 --
emorandum of Po ints and Authorities in Su pport of
Dem urrer to Plaintiffs Complaint (34-2010-00077415)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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provide any legal support for her claim that Dunn's incomplete voter registration form
disqualifies his candidacy for Secretary of State. Moreover, judicially noticed records show that
the Secretary of State's office investigated the impact of Dunn's failure to list his prior
registration in Florida, and found no intentional misconduct. (Req. for Judicial Notice, Ex. C.)
Barnett's fraud claim lacks any legal or factual merit. For this reason, the Court should sustain
Defendants' demurrer.
B . Brown Did Not Breach A ny D uty Ow ed to Barnet t , Because , as At torneyGen eral , He Had No Statutor y Du ty to Enforce Elect ion L aw s.
Barnett alleges that Attorney General Brown breached his fiduciary duties by not
disqualifying Dunn as a candidate due to his incomplete voter registration form. (Compl. 77 57-
58.) The Attorney General, however, has no duty to intervene in an election law claim, unless the
Secretary of State finds evidence of an election law violation, and refers the matter to the
Attorney General. (Gov. Code 5 12172.5; seeAssemblyv. Deukmejian (1982) 30 Cal. 3d 638 ,
650 [stating that the Secretary of State, not the Attorney General, is "the official charged with
ensuring proper application of the state's elections laws"].) Here, there was no evidence of any
election law violation, so the Secretary of State had no need to refer the matter to the Attorney
General. The Attorney General, therefore, had no duty to investigate Barnett's claims against
Dunn, and is therefore entitled to dismissal of this matter
11 I11 I11 I
I Memorandum of P o~ nt s nd A uthorities in Support of
I Demurrer to Plain tiffs Com plaint (34-2010-00077415)
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CONCLUSION
Barnett's Com plaint against Dun n, Bowen, and Brown is untimely, and lacks any facts
sufficient for stating a claim for relief. Ba rnett's untimely request for relief-which includes
removal of Dunn and Bowen from the Secretary of State ballot, and Brown from Governor's
ballot-would interfere with the ongo ing elections process. Moreov er, the com plaint and
judicially noticed documents fail to show that Dunn violated any election laws in declaring his
candidacy for Secretary of State, or that Se cretary of State Bowen breached any of her duties in
certifying his candidacy. Moreover, B am ett's complaint fails to allege that Atto me y General
Brown had any duty to intervene in Dunn 's declaration for candidacy. For these reasons,
defend ants request that the Court su stain their demurrer without leave to amend, and dismiss this
action
Dated: June 11,2 01 0 Respectfully Subm itted,
E DM I D . BROWN R.Attorney Gen eral of CaliforniaSTEPHEN. ACQU ISTOSupervising Dep uty Attom ey G eneral
ANTHONY. O'BRIENDeputy Attorney G eneralAttorneys for Defendants Edmund G.Brown Jr., Attorney Gen eral, and DebraBowen, Secretaiy of State
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