Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint

8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint

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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)



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)



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



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)



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

Memorandum of Points and Authorities in Support ofDemurrer to Plaintiffs Complaint (34-2010-00077415



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

Memorandum of points and Authoritiesin

~ u ~ ~ oDemurre1 to Plaintiffs Complaint (34-2010-00077415)



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

Demurrer to Pla~ntiff Complaint (34-2010-00077415 )



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

Demurrer to Plainhff s Compla~nt 34-2010-0007741 5)



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

Den~urrero Plalntiff s Complaint (34-2010-00077415)



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).)

Memorandum of Points an d Authorities in suppo~to

Demuner to Plaintiff s Complaint (34-2010-00077415)



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 --

einorandurn of Points and Authorities in Suppolt ofDemurre] to Plaintiffs Complaint (34-2010-0007741.5)



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.

Memorandum of Points and Authorities In Support ofDemurrer to Plaintiffs Complaint (34-2010-00077415)



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-

Memorandum of Points and Authorities in Support of

Demurrer to Plaintif fs Complaint (34-2010-00077415)



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)



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)



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)



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

10

Documents

Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint