BARNETT v DUNN (STATE CASE CALI) - Memorandum of Points and Authorities - DefaultDMS

8/9/2019 BARNETT v DUNN (STATE CASE CALI) - Memorandum of Points and Authorities - DefaultDMS

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EDMUND G. BROWN JR.Attomey General of CalifomiaSTEPHEN P. ACQUISTOSupervising Deputy Attomey GeneralANTHONY P. O 'BRIENDeputy Attomey GeneralState Bar No. 232650130 01 Street, Suite 125

P . O . Box 944255Sacramento, CA 94244-2550Telephone: (916)323-6879Fax: (916)324-8835E-mail: [email protected] for Defendants Edmund G Brown J rCalifornia Attorney General, and Debra Bowen,California S ecretary of State

LED/ENDORSED

SUPERIOR COURT OF THE STATE OF CAL IFORNIACOUNTY OF SACRAMENTO

P A M E L A B A R N E T T ,Plaintiff,

D A MO N JE R R E L L D UN N , E T A L . .Defendants.

CaseNo. 34-2010-00077415M E M O R A N D U M O F P O I N T S A N DA U T H O R IT I E S IN S U P P O R T O FD E M U R R E R T O P L A I N T I F F 'S F I R S TA M E N D E D C O M P L A I N T(Code Civ. Pr o c 430.10, subd . (e))Date:Time:Dept:Judge:Trial Date:

October 25, 20109:00 a.m.54The Honorable ShelleyanneChangNot Y et SetAction Filed: May 10, 2010

Memorandum of Points and Authorities in Support ofDemurrer to Plamtiffs Complaint (34-2010-00077415)
mailto:[email protected]:[email protected]


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1 T A B L E O F C O N T E N T S2 Page3 Introduction 1

Background 2A. Factual background 2B. Procedural history 4

6 Standard of Review 5Argument 6

I. The court should sustain the demurrer because Ba m ett's requested relief8 would substantially interfere with the conduct of the election 6Q II. Ba m ett failed to state a claim for relief beca use Du nn satisfied theeligibility requirements to run for Secretary of State, and is not disqualified. by any omissions in his voter registration form 8

A. Dunn satisfied the state's eligibility requirements to run as a11 republican candidate for Secretary of State 8B. Bamett failed to allege facts showing that Dunn's omission of priorregistration information invalidated his C alifomia voter registration.., form 10

III. The court should sustain defendan ts' dem urrer as to Ba m ett's breach of14 fiduciary duty claim s beca use defendan ts fulfilled all duties in ensurin gthat D un n's candidacy comp lied with election laws 12A. Bowen did not breach any duty to Bam ett in verifying Dim n'seligibility for candida cy 12B. Brovm did not breach any duty owed to Ba mett, because, as

17 Attom ey General, he had no statutory duty to enforce election laws 13r v . The court should sustain demurrer on Ba m ett's seventh cause of action forunjust enrichment because she has not alleged facts supporting any ofh erunderlying claims 14

16

1819 V. The court should deny Bam ett any further leave to amend her complaint20 because she cannot state a claim for relief. 142122232425262728

Conclusion 15

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^ T A B L E O F A U T H O R I T IE S2 C A S E S3 Aguilar v. Atlantic Richfield Co.4 (2001) 25 C aU th 826 3

Assembly v. Deukmejian(1982) 30 Cal.3d 638 13Blake v. Kirwan(1985) 39 Cal.3d 311 14

Cooke V. Superior Court(1989) 213 Cal.App.3d 401 2

5678

Cantu V. Resolution Trust Corp.9 (1992) 4 Cal.App.4th 857 6,1410 Cham bers v. Ashley

(1939) 33 Cal.App.2d 390 61213 Friedland v. City of L ong Beach14 (1998) 62 Cal.App.4th 835 515 Gentry v. eBay, Inc.(2002) 99 Cal.App.4th 816 6161718

Minsky V. City of L os A ngeles19 (1974) 11 Cal.3d 113 1420 M oo re v. Conliffe(1994) 7 C aU th 634 52122232425262728

Gulf Ins. Co. V. TIG Ins. Co.(2001) 86 Cal.App.4th 422 5

Stracke v. Farquar(1942) 20 Cal.2d 82 6

S T A T U T E SCode Civ. Pr oc , 430.10, subd. (e) 5Code Civ. P ro c, 430.30, subd. (a) 5El ec Code, 2101 11E le c Code 2150-54 and 8001 5

i i Memorandum of Pomts and Authorities m Support ofDemurrer to Plam tiffs Complamt (34-2010-00077415)
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1 E lec Code, 2150, 2153-54 112 El ec Code 215 0,215 3, and 2154 53456789

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E lec Code, 2150, subd. (a)(10) 10E lec Code 2153 10E lec Code, 2153 , subd. (c) 11E lec Code 5100 9,10Elec. Code 8001 passimE lec Code 8001(b) 3, 10E le c Code 800 1, subd. (a) ". 9E lec Code 8001 , subd. (a) 8

12 E lec Code 8070, 8082 1213 E lec Code 8120 7,1 214 E le c Code 13314, subd. (a)(1) 615 E le c Code 13314, subd. (a)(2)(B) .' 6, 816 Evid. Code 452 2

Evid. Code 452, subd. (c) 2Fla. Stat. 98.06 5, subd. (4)(c) 2Gov. Code 12172.5 . 12,1 3C O N S T I T U T I O N A L P R O V I S I O N SCal. Con st., art II, 2.5 6, 8

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I N T R O D U C T I O NIn her First Amended Complaint, Plaintiff Pamela Bamett seeks an order to remove Damon

Dunn from the General Election ballot for Califomia Secretary of State. But Bam ett's claim isbased on her unsupported and erroneou s contentions that Durm has not been affiliated with theRepublican Party for a sufficient amount of tim e before declaring his candidacy, and that Dunndid not complete the prior registration section when registering to vote in Califomia in March2009. Bam ett also seeks to remove S ecretary of State Debra Bowen and Attomey GeneralEdmu nd G . Brown Jr. from the G eneral Election ballot, claiming that they breached theirfiduciary duties to Bam ett by not disqualifying Dunn as a candidate for Secretary of State.

The Court should sustain Defendants Brown and Bowen's demurrer without leave toamend. The issuance of Ba m ett's requested relieforders to remove Dunn, Bowen, and Brownfrom the General Election ballot^would substantially interfere wdth the November 2010 election.The primary election ended on June 8,2010, the parties have nominated candidates for theSecretary of State and G ovem or races, and the state's voters will elect a Secretary of State andGov emo r in the No vem ber 2, 2010 General Election. Ba m ett's requested relief, therefore, wouldresult in the nullification of votes cast for Dunn, Bo wen, and Brown.

The C ourt should also sustain the demurrer because D unn properly qualified as an eligiblecandidate for the Repu blican nomination for Secretary of State. Before declaring his candidacy,Dunn needed to have been affiliated with the Califomia Republican party for at least threemonths, and not affiliated with any other qualified Califomia party for at least twelve months.Dunn cleared both of these requirements. He registered as a Republican nearly twelve m onthsbefore declaring his candidacy for Secretary of State in March 2010. And D un n's priorregistration in the Florida Democratic Party did not disqualify his candidacy because it expiredfive years before he declared his candidacy, and the Florida Dem ocratic Party is not a qualifiedpolitical party in Califomia.

Defendants are also entitled to dismissal because Bamett's complaint fails to state any factsshowing that Defendants breached their duties in the processing of Dun n's declaration for

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1 candidacy. The Secretary of State fulfilled her duties by not only presenting Dunn as one o fth e2 certified candidates for Secretary of State, but also confirming D un n's eligibility after Ba m ett had3 requested an investigation. As Attom ey General, Brown has no statutory duty to investigate4 D un n's eligibility, especially when the Secretary of State has not found any reason to refer the5 matter to the Attom ey General. And Bame tt's,com plaint fails to raise any facts showing that any6 of the defendants intentionally concealed or misrepresented information regarding Du nn 's7 eligibility to run for Secretary of State. For these reasons, the Court should sustain D efendants'8 demurrer.9 In sustaining this demurrer, the Court should also deny Bam ett any further leave to amend

10 her comp laint. Bam ett has exercised her right to amend her complaint once before answering11 Defen dants' initial demurrer. But even in her First Am ended Complaint, Bam ett has still failed to12 allege any facts stating a claim for relie f Becau se Ba me tt carmot allege any facts show ing that13 the Defendants are liable, the Court'should deny her leave to amend her complaint yet again, and14 should close this matter.1516171819202122232425

B A C K G R O U N DA. Factual Backg round.Dam on Durm is the Republican candidate for Califomia Secretary of State. (Req. for

Judicial Notice, Ex. 1, 6.)'In 1999, Dunn registered to vote in Florida and stated his affiliation with the Democratic

Party. (First Am ended C omp l. (FAC), Exh. D.) Under Florida law, a resident is placed on theinactive voter list when h e or she does not respond to a m ailed address confirmation sent by thecounty supervisor of elections. (Fla. Stat. 98.065, subd. (4)(c).) The voter is then rem ovedfrom the statewide voter registration system i fh e or she does not vote for two consecutive federalelection s, and fails to update his or her voter registration inform ation. (Ibid.)

26 ' The official acts oft he legislative, executive, and judicial departments of an y state ofthe United States may be judicially noticed. (Evid. Code 452 , subd. (c).) (See Cooke v27 Sup erior Court (1989) 213 Cal.App.3d 401, 416 [records ofa coimty are properly noticed underEvid. Code 452 (official acts ofthe state), since counties are legal subdivisions ofth e state].)^^ 2

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1 In March 2002 , the Duval County, Florida Supervisor of Elections converted Du im's voting2 status to inactive because Dunn did not have any voting history, and did not respond to mail sent3 to his Jacksonville residence. (Req. for Judicial No tice, Exh. 2.) Dunn had no further activity on4 his Florida voting record, and on June 6, 2005 , the Duval County Elections Supervisor converted5 Dunn to an ineligible voter in Florida, thus requiring Dunn to reregister ifhe wanted to vote in6 Florida. (Req. for Judicial No tice, Ex. 2.)7 On March 13, 2009 , Durm registered to vote in Califomia and stated his affiliation with the8 Republican Party. (FAC , Exh. A.) On March 10,2 01 0, Dunn declared his candidacy for the9 Republican nom ination for Califomia Secretary of State. (Req. for Judicial No tice, Exh. 1.) As

10 part of his Dec laration of Cand idacy, the Oran ge Cou nty, Califom ia Regisfrar of Vo ters certified11 that Durm: (1) had been affiliated w ith the California Republican Party for at least three months12 before filing his declaration for candid acy; and (2) was not affiliated with any other political party13 for twelv e mo nths before declaring his cand idacy. (Req. for Judicial N otice, Ex h. 1.)14 On March 30, 2010 , Jerry Holland, Supervisor of Elections for Duval Coun ty, Florida,15 issued a letter to the Califom ia Secretary of Sta te's office stating that Du nn had becom e ineligible16 to vote in Florida in June 2005, due to his inactivity and lack of response to mailings from the17 Office ofth e Sup ervisor of Elections. (Req. for Judicial No tice, Exh . 2.)18 On May 12, 2010, the Secretary of State's Office responded to a complaint filed by Bam ett19 regarding Du nn 's eligibility. (Req. for Judicial N otice, Exh . 3.)^ In the letter the Secretary of20 State's Office noted that Du nn 's registration as a Dem ocrat in Florida expired in June 2005, and21 that he was not affiliated with any party when he registered to vote in Califomia in March 2009 .22 ^ In her amended comp laint, Bamett incorrectly states that Dunn declared his candidacyon Nov ember 5, 2009 , when he submitted a'Candidacy Intention Statement. (FAC ^ 29, Exh. B.)23 As opposed to the Declaration of Candidacy, which includes an affidavit showing the cand idate'saffiliation with his or her political party, as required under Elections Code 8001(b), the24 Candidate Intention Statement is not mandated by Elections Code 800 1. Th erefore, Dunndeclared his candidacy on March 10, 2010, when he filed the state-mandated Declaration of25 Candidacy form (Req. for Judicial No tice, Exh. 1), not when he filed the Candidate IntentionStatement.26 ^ The Cou rt'may take judicial notice ofa ny document published, recorded, or filed by anyexecutive department. (See Agu ilar v Atlantic Richfield Co (2001) 25 Cal.4th 826, 842 n.3 ['"we27 may take judicial notice ofth e report o fa state executive officer as reflecting an 'official act'" ](citation omitted).)28 3

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1 (Req. for Judicial N otice , Exh . 3.) The Secretary of Sta te's Office also noted that there we re no2 criminal sanctions for Dun n's failure to complete the section on prior registration in his voter3 regisfration card. (Req. for Judicial N otice , Exh . 3.)4 On June 8, 2010, Califomia completed the Statewide Direct Primary Election. (Req. for5 Judicial No tice, Exh. 5.) Dunn won the Republican Primary for Califomia Secretary of State,6 receiving 74.4 percent oft he sta te's Republican votes. (Req. for Judicial No tice, Exh. 5.)7 B. Proc edural His tory.8 On May 10, 2010, Bam ett filed a complaint against Dam on Dunn, Secretary of State9 Bow en, and Attom ey General Brown, alleging that: (1) Bowen violated the Elections Code

10 8001 and defrauded the Plaintiff by allowing Dunn to run as a Republican candidate for Secretary11 of State; and (2) Brown and Bowen both breached their fiduciary duty owed to Plaintiff by not12 disqualifying Dunn from the election.13 On June 2, 2010, Bam ett filed a petition for writ ofm and ate in the Third District Court of14 App eal, requesting that the appellate court issue a writ barring Dunn from voting in the June 8,15 2010 primary. The court denied Ba m ett's writ on June 3, 2010 without entertaining opposing16 briefs or oral argum ent.17 On June 2, and again on June 7, 2010 , Bam ett filed motions in this Court for orders18 shortening time for a hearing requesting: (1) that Dunn be removed from the primary ballot; and19 (2) a court order preventing elections officials from counting any ofth e primary votes cast for20 Dunn. The Court rejected both mo tions, noting that Bam ett failed to show good cause as to why21 she did not bring these mo tions earlier.22 On June 11, 2010, Secretary of State Bowen and Attomey General Brown filed a demurrer23 to Ba m ett's complaint. Bam ett never responded to the demurrer. Instead, on July 12, 2010 ,24 Bam ett filed her First Am ended Complaint, naming Dunn , Bowen, Brow n, and Neal Kelley, the25 Orang e Coun ty Regisfrar of Vo ters, as defend ants. Covmsel for Secretary of State Bow en and26 Attom ey General Brown received service ofth e First Am ended Com plaint on July 15, 2010 .27 Ba m ett's First Am ended Com plaint includes the followdng allegations against Defendants28 Bowen and Brown:

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1 Second Cau se of Action: Secretary of State Bow en spoiled evidence and infringed onPlaintifPs First Am endmen t rights by allowing Dam on Duim to run as a Repub lican^ candidate for Secretary of State. (FAC , IJH 43-69.)3 Th ird Cau se ofA ction : Bowen violated Califomia Election Code 2150, 2153 , and4 2154 by not seeking D un n's prior regisfration information when he registered to vote inCalifomia. (FAC, HlJ 70-79.)6 Fo ur th C ause ofA ction : Bowen and Attomey General Brown acted confrary to publicpolicy by failing to ascertain information regarding D un n's prior out-of-state voting7 record. (FAC,^1180-88.)8 Fifth Ca use of A ctio n: Bow en acted with undue influence by allowing Durm to proceedwith his campaign, even though he violated C alifomia E lections Code 2150-54 and9 80 01 . (FA C, IIII 89-100 .)

Sixth Ca use ofA ctio n: Bowen and Brown breached their fiduciary duties owed to11 Plaintiff by failing to investigate D uim 's incom plete voter registration form. (FA C, H^101-135.)12Seventh Ca use ofA ction : Bowen and Brovm were unjustly enriched by allowing D unn 's13 candida cy for Secretary of State. (FA C, f 136-37.)

14 As discussed below, none of these causes of action allege facts sufficient to state a claim for15 relief against either Defendant Bowen or Brovm. Therefore, the Court should sustain this16 dem urrer wdthout leave to amend,^ STANDARD OF REVIEW18 A dem urrer tests the sufficiency of th e com plaint; that is, whe ther it states facts sufficient to19 constitute a cause of action. (Code Civ. P ro c, 430.10, subd. (e); Frie dlan d v City of L ong20 Beach (1998) 62 Cal.App.4th 835, 841-84 2.) To make this determination, the trial court must21 accept as trae all material facts pleaded in the complaint and matters ofw hich it may take judicial22 notice, but not conclusions of law. (Code Civ. P ro c, 430.30, subd. (a); Moore v Conliffe23 (1994) 7 C aU th 634, 638.)24 "[A]ny allegations that are contrary to the law or to a fact of which judicial notice may be25 taken will be treated as a nullity." (Gulf Ins Co v TIG Ins. Co (2001) 86 Cal.App.4tii 422, 429.)26 A party may not avoid demurrer by suppressing facts, including those that are judicially2728

Memorandum of Points and Authorities in Support ofDemurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
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1 noticeable, which prove the pleaded facts false. (Cantu v Resolution Trust Corp . (1992) 42 Cal.App.4th 857, 877.)3 Where the complaint's allegations or judicially noticeable facts reveal the existence of an4 affirmative defense, the plaintiff mu st allege specific facts that avoid the apparen t defense.5 (Gentry v. eBay, Inc (2002) 99 Cal.App.4th 816, 824.) Absent such allegations, the complaint is6 subject to dem urrer for failure to state a cause of action. (Ibid)7 A R G U M E N T8 I . T H E C O U R T S H O U L D S U ST A IN T H E D E M U R R E R B E C A U S E B A R N E T T ' S R E Q U E S T E D

R E L I E F W O U L D S U B S TA N T IA L L Y IN T E R F E R E W I T H T H E C O N D U C T O F T H E9 E L E C T I O N .

10 Actions to remove candidates from the ballot should be denied when they are untimely,11 mo ot, or would interfere with the conduct ofth e election. The Califomia Constitution provides12 that "[a] voter who casts a vote in an election in accordance wdth the laws ofth is State shall have13 that vote counted." (Cal. Const, art. II, 2.5.) The Elections Code prevents the issuance or writs14 that wdll "substan tially interfere with the condu ct of th e election ." (Elec. Code 13314, subd.15 (a)(2)(B).) And courts have denied untimely actions to omit names from the ballot when the16 election had already begun, or had since ended. (See Stracke v. Fa rq ua r (1942) 20 Cal.2d 8217 [refusing to grant a petition for a peremptory writ ofm and ate to compel the omission oft he18 names of seven persons from the ballot because "the ballot already had been printed and19 distributed to certain voters"]; see also Cham bers v Ashley (1939) 33 Cal.App.2d 390, 39120 [denying as moot writ to keep the name of a judg e off of the primary election ballot since the21 primary election had already passed].)22 Here, Ba m ett's requested relief^removal of Duim, Bowen and Brown from the general23 election ballotsis similarly moo t, and would greatly interfere with the conduct ofth is election.24 The June 8 primary election has long passed, and the parties have selected their nominees for25 '' Bam ett brought this action as a complaint, even though a writ ofm and ate would have26 been the more appropriate means for relief (See Elec Code 13314, subd. (a)(1) [prescribing awrit ofm anda te as the sole vehicle for challenging a violation of state election law by an27 elector].) Since the relief Bam ett requests more closely resembles the relief provided through awrit ofm and ate, defendants refer to election laws regarding writ relief28 6

Memorandum of Points and Authorities m Support ofDemurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
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1 Secretary of State and G ov em or (Req. for Judicial No tice, Exh. 5, 6.) M oreover, the Secretary2 of State has begun publishing the general election ballot materials, which list Bowen and Dunn as3 candidates for Secretary of State, and Brovm as the Dem ocratic Candidate for Govem or. (Req.4 for Judicial No tice, Ex. 6, 7.) By October 4, the Secretary of State will begin processing vote-by-5 mail applica tions. (Req. for Judicial No tice, Exh . 7.) T herefore, any attemp t to sfrike Durm,6 Bo wen , and Brow n from the ballot at this stage of th e election wdll substantially interfere wdth the7 general election, and result in the nullification of votes cast for all three of these candidates during8 the primary and general elections. For this reason, the Court should deny Ba m ett's request for9 relief

10 Moreover, Bam ett unreasonably delayed in filing the initial complaint imtil May 10 ,20 10,11 only 29 days before the prim ary election. (Com pl. p. 1; Req. for Judicial N otice , Ex . 1.) And she12 did not file the First Am ended Complaint until July 12,2 010 , well after the primary election.13 (FAC , p. 1.) Bam ett relies solely on the Du nn 's Florida and Califomia voter registration forms,14 and Cand idate Intention Statements as evidence that Dun n failed to meet the eligibility15 requirements under Elections Code 800 1. (FA C, Exh s. A, B, D.) Du nnfile d the last of these16 formsthe Candidate Intention Statementin Nov ember 2009w ell before April 1, 2010 , when17 Bowen submitted Du im's name as among the certified candidates for Secretary of State. (FAC ,18 Exh. B; Req. for Judicial No tice, Exh. 4; Elec. Code 8120.)19 Bam ett could have broug ht this legal challenge before the Secretary of State subm itted the20 certified list of cand idates. She could have also broug ht this challenge before perso ns in the21 military and overseas began voting in the primary election (April 9, 2010), and before counties22 began mailing sample ballots for the primary election (April 29, 2010). (Req. for Judicial No tice,23 Ex . 4.) But Bam ett did not file her initial com plaint until well after these critical election events24 had already taken place.25 In her amended complaint, Bam ett claims that she brought the lawsuit "imm ediately after26 realizing that the Secretary of State was going to fail to act on her fraud complaint" against Dunn.27 (FAC , ^ 13.) Bam ett, however, did not contact the Secretary of State's office about her complaint28 against Dunn until May 3, 2010 , when she faxed a letter to the Secretary of State's office. (FAC ,

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1 Exh. J.) On May 12, 2010 , the Secretary of Sta te's responded to Ba m ett's faxed inquiry2 regarding Du nn 's ehgibility. (Req. for Judicial No tice, Exh. 3.) Bam ett does not allege that the3 Secretary of State delayed in responding to Ba m ett's inquiry, or that the Secretary of State4 prevented Bam ett from raising her complaint in this Court before May 10, 2010 . And Bam ett5 does not state why the filing ofh er claim with the Secretary of State prevented her from filing a6 similar claim in this Court at the same time. Ba m ett's justification ofh er delay, therefore, lacks7 any merit.8 The lateness of Ba m ett's petition is particularly egregious because the primary election9 ended on June 8, 2010. Any decision at this time that affects the eligibility of Durm, Bow en, and

10 Brow n to be on the general election ballots wou ld nullify the prim ary election votes cast for these11 candidatesa result that violates the Califomia Constitution's specific provision requiring the12 counting of every lawfiilly cast vote , and wou ld result in the substantial interference with the13 conduct ofthe election. (Cal. Const, art. II, 2.5; Elec. Code 13314, subd. (a)(2)(B).) For tiiis14 reason, the Court should deny Ba m ett's request relief, and sustain this demurrer without leave to15 amend.16 I I . B A R N E T T F A I L E D T O S T A T E A C L A I M F O R R E L I E F B E C A U S E D U N N S A T I S F IE D T H E

E L I G I B I L I T Y R E Q U I R E M E N T S T O R U N F O R S E C R E T A R Y O F S T A T E , AN D I S N O T17 D I S Q U A L I F IE D B Y A NY O M I S S I O N S I N H I S V O T E R R E G I S T R A T I O N F O R M .18 A. Du nn Satisfied the State 's Eligibility Req uirem ents to Ru n as a Repu blicanCandidate for Secretary of State.19202122232425262728

Under Califomia Elections Co de, a candidate for a partisan office cannot file a declarationfor candidacy unles s: (1) he has shovm by affidavit to be affiliated wdth the political party for atleast three months before presenting his declaration of candidacy for that par ty's no mination; and(2) he has not been registered as affiliated with another "qualified political party" within twelvemo nths imm ediately prior to the declaration. (Elec. Code 8001 , subd. (a).)

Here, the Court should sustain the demurrer because D unn satisfied the Election Co de 'srequirem ents before filing his declaration for candidacy as Secretary of State. First, Du nnsatisfied the three-mo nth requirement because he registered w ith the Republican Party on March13, 2009 , nearly twelve months before he declared his candidacy. (FAC , Exh. A; Req. for

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1 Judicial No tice, Exh. 1.) And second, Dunn was not a mem ber of any other qualified po litical2 party for the twelve mon ths preceding his declaration of candidacy. (FAC, Exh. A; Req. for3 Judicial N otice , Exh . 1.)4 In her First Am ended Com plaint, Bam ett presents no facts (or even allegations) that Dunn5 was a mem ber ofany other political party for the twelve month period before March 2010, when6 he declared his candidacy for Secretary of State. In her Second Cause ofA ction, B amett alleges7 that Bowen spoiled evidence and violated her First Am endment Rights by not publicizing Dim n's8 prior voter registration in Florida and Texas. (FAC , Tif 57, 61 , 67, Exh. Jl) . And in her Fourth9 Cause ofA ction, B amett contends that Secretary of State Bowen and Attom ey General Brovm

10 acted contrary to public policy because they did not ascertain information regarding D un n's prior11 out-of-state voting record. (FAC, 80-88.) These claims lack any merit because Duim was not12 registered with any other political party within twelve months before declaring his candidacy.13 Bam ett fails to allege any facts showing that Du nn had active voter registrations in either of these14 states, or in any other jurisdiction, at any time during twelve months prior to his declaration of15 candidacy. To the contrary, all available records show that Dim n's only other political16 affiliation^with the Florida Dem ocratic Party expired in 20 05. (Req. for Judicial N otice , Exh .17 2.) So Dunn satisfied the candidacy eligibility requirements outlined in Elections Code 800 1,18 subdivision (a). Secretary of State Bowen and Attom ey General Brovm, therefore, did not violate19 the Election Code, PlaintifFs First Am endment rights, or public policy by allowing Dun n's20 candidacy to proceed. For this reason, the Court should sustain Defend ants' demurrer as to21 Ba m ett's Second and Fourth Causes ofA ction without leave to amend.22 Mo reover, Du im's past affiliation with the Florida Dem ocratic Party could not have23 disqualified his candidacy because the Florida Dem ocratic Party is not a "qualified political24 party" as defined under the Califomia Elections Code. Elections Code 5100 defines a2526

^ To support her claim that Dunn w as registered to vote in Texas, Bam ett presents what27 appears to be an investigation report from an online service stating that Dunn had an inactivevoter registration in Texas in December 2001. (FAC, Exh. Jl.)28 9Memorandum of Points and Authorities in Support ofDemuner to Plain tiffs First Amended Complaint (34-2010-00077415)


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1 "qualified political pa rty " as a party that fulfills any of th e followdng cond itions related to2 California elections:

(1) the party polled at least 2 percent oft he vote in the last gubem atorial election;A (2) the total num ber of voters registered with the party on or before the 135th day beforethe election equals at least 1 percent ofth e entire vote in the last gub ematorial5 election; or(3) the party filed a petition with the Secretary of State, on or before the 135th day before6 the primary, with signatures of voters equal to 10 percent ofth e oft he state's entirevote for the previous gubem atorial election.g (Elec Code 5100 .)

The Florida Dem ocratic Party is not a "qualified political party" as defined under E lectionsCode 8001(b), because it has not fulfilled any ofth e above noted conditions before the June 8,2010 primary. Therefore, Duim 's past affiliation with that party would not have disqualified hiscandidacy for S ecretary of S tate under any circum stances.

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B. Barnett Failed to Allege Facts Showing that Dunn's Omission of Prior14 Registration Inform ation Invalidated His California Voter RegistrationF o rm .1516171819202122232425262728

A voter's Califomia regisfration form includes a "prior regisfration portion indicatingwhether the affiant has been registered at another address, under another nam e, or as intending toaffiliate w ith another party." (Elec. Cod e, 215 0, subd. (a)(10).) "I fth e affiant has been soregistered, he or she shall give an additional statement giving that address, nam e, or party ."(Ibid.)

Ba m ett's T hird and Fifth Causes ofA ction hinge on the theory that Secretary of StateBowen should have disqualified D un n's candidacy because he left blank the section in his voterregistration that calls for prior registration information. (FAC, Yi 10-19, 89-100, Exh. A.) Tosupport her argument, B amett cites Elections Code 2153, which identifies steps that a countyelections official should generally take to fill in blank spaces in the voting registration form:/ / // / // / /

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1 Iftiie affidavit does not contain all ofth e information required, and the countyelections official is not able to collect the missing information by telephone, butthe mailing address ofthe affiant is legible, the coimty elections official shall2 inform the affiant of th e reason for rejection and shall send to the affiant a newCalifomia Voter Registration Form.2

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(Elec Code, 2153, subd. (c).)Bamett's allegations hinge on an interpretation ofthe Elections Code that requires

nullification of voter registration if a voter does not fill out the voter registration section oft heform. This hypertechnical constraction lacks any legal support and runs confrary to the ElectionCo de's b asic requirements for voter eligibility: (1) that the voter is a United States citizen, and a(2) Califomia resident; (3) that the voter is not in prison or on parole for a felony conviction; and(4) that the voter is at least 18 years ofag e. (Elec. Code, 2101.) Du nn 's omission ofinformation regarding his prior regisfration touches on none of these requirem ents, and therefore,does not provid e sufficient justification for nullifying his voting regisfration. At most,information regarding D un n's prior registration g oes toward his eligibility for running for office.(Elec. Cod e, 8001.) Since the facts on record show that Dunn has satisfied the affiliationrequirements to run as a Repub lican candidate for Secretary of State, his omission of informationin his voter regisfration recordand Bo we n's decision not to disqualify him on the basis of thatomissiondoes not amount to any election law violation.

Moreover, there this no law imposing a duty on the Secretary of State to nullify an ele ctor'svoter registiation form because he did not complete the section on prior registiation. The statutesBam ett relies on do not require disqualification if a voter does not complete the prior regisfrationsection, nor do they impose any duty on the Secretary of State to take any action against the v oter.(Elec. Code , 21 50 , 2153-54.) Without such an affirmative duty, Bamett cannot allege that theSecretary of State violated the Election Code or acted w ith undue influence in allowing D un n'scampaign to proceed.

The demurrer should also be sustained because it appears Dunn correctly left the prior-registration box blank. L ine 16 oft he voter regisfration form completed by Dunn states: "Ify ouwere registered to vote before, fill out below." (FAC , Exh. A.) Bam ett has not presented any

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1 facts showing that Dunn was previously registered to vote in Califomia before March 2009 .2 Without any record of prior registration in Califomia, Dunn did not need to complete this section.3 And since Dunn was not a mem ber of any qualified political party when registering to vote in4 March 2009, he was not concealing any information that would give Bow en, or any govemm ent5 official, cause to disqualify his candidac y for Secretary of State. For these reaso ns, the Court6 should sustain this demurrer as to Ba m ett's Third and Fifth Causes ofA ction without leave to7 amend.8 I I I. T H E C O U R T S H O U L D S U S TA IN D E F E N D A N T S ' D E M U R R E R A S T O B A R N E T T ' S

B R E A C H O F FI D U CI A R Y D U T Y C L A I M S B E C A US E D E F E N D A N T S F U L F I L L E D A L L9 D U T I E S IN E N SU R I N G T H A T D U N N 'S C A N D I D A C Y C O M PL I E D W I T H E L E C T I O N L A W S .

10 A. Bowen Did Not Bre ach Any Duty to Ba rne tt in Verifying D un n's Eligibilityfor Candidacy.12 As the chief elections officer of the state, the "Secretary of State shall see that elections are13 efficientiy conducted and that state election laws are enforced ." (Gov . Cod e 12172.5.) To14 determine if there has been any violation of election laws, the Secretary of State may examine15 ballots, vote-counting comp uter program s, "and any other records of elections officials." (Ibid.)16 If the Secretary of State finds that any election laws are not being enforced, he or she "shall call17 the violation to the attention ofth e district attomey ofthe county or to the Attom ey Gen eral."18 (Ibid.)19 W ith respect to the determ ination of candidate eligibility, the Secretary of State is20 responsible for: (1) filing nomination documents received from the county elections officials21 (Election s Code 807 0, 8082 ); and (2) tiansm itting to each county elections official a certified22 list of candid ates eligible for the direct prim ary. (Elec. Code 8120.)23 In her Sixth Cause ofA ction , Bam ett claims that Secretary of State Bowen breached her24 fiduciary duties by not disqualifying Dunn as a candidate for Secretary of State. (FAC, 101-25 30.) Ba m ett's claim however, is based on the false premise that Du nn's omission of prior26 registiatio n on his voting registration form disqualified his candida cy. (FA C, Tif 105, 112-15.)27 As noted above, D un n's omission does not invalidate his voting eligibility, and it does not give28 12

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1 rise to a duty for Bow en to disqualify his candidac y. Becau se Bam ett has not alleged any facts to2 create a duty, she cannot allege that Bowen breached any fiduciary duty in not disqualifying3 Dunn from the race. For this reason, the Court should sustain the demurrer as to Ba m ett's Sixth4 Cause of Action.5 Confrary to Ba m ett's allegations, Bowen has fully executed her obligation to enforce the6 election laws , by verifying D un n's candidac y after Orange Coun ty elections officials certified his7 eligibility. (Req. for Judicial No tice, Exh. 1.) In a letter response to Ba m ett's claims against8 D un n's candidacy, the Secretary of State 's office confirmed that Dunn met the affiliation9 requirements under Elections Code 800 1. (Req. for Judicial No tice, Exh. 2, 3.) Secretary of

10 State Bowen upheld her statutory duties in ensuring that Du nn 's candidacy complied with11 election laws, and is entitled to dismissal of Ba m ett's complaint.12 Bam ett also alleges that Bowen defrauded her by "co nc eali ng ] and enter[ing] false13 statem ents into the public record with intention of fraudu lently obtaining votes ." (FA C, Tif 124.)14 Bam ett does not identify the allegedly false statements made by Bow en. Moreov er, the Secretary15 of State's office investigated the impact of D un n's failure to list his prior registiation in Florida,16 and found no intentional misconduct. (Req. for Judicial No tice, Ex. 3.) Ba m ett's fraud claim17 lacks any legal or factual merit. For this reason, the Court should sustain De fend ants' dem urrer18 without leave to amend.19 B. Brow n Did Not Breac h Any Duty Owed to Ba rnett , Because, as Attorn eyGeneral , He Had N o Sta tutory Duty to Enforce Elect ion L aws.21 In her Sixth Cause ofA ction, Bam ett also alleges that Attom ey General Brown breached22 his fiduciary duties by not disqualifying Dun n as a candidate due to his incomplete voter23 regisfration form. (FA C, ff 81-83, 103.) The Attome y G eneral, howev er, has no duty to24 intervene in an election law claim, unless the Secretary of State finds eviden ce of an election law25 violation, and refers the matter to the Attom ey General. (Gov. Code 12172.5; see Assembly v.26 Deukm ejian (1982 ) 30 Cal.3d 638, 650 [stating that tiie Secretary of State, not tiie Attom ey27 General, is "the official charged with ensuring proper application ofthe state's elections laws"].)28 13

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1 Here, there was no evidence of any election law violation, so the Secretary of State had no need2 to refer the matter to the Attom ey General. The Attom ey General, therefore, had no duty to3 investigate Ba m ett's claims against Dunn , and is therefore entitled to dismissal ofth is m atter.4 I V. T H E C O U R T S H O U L D S U S T AI N D E M U R R E R O N B A R N E T T ' S S E V E N T H C A U S E O F

A C T I O N F O R U N J U S T E N R I C H M E N T B E C A U S E S H E H A S N O T A L L E G E D F A C T S5 S U P P O R T I N G A NY O F H E R U N D E R L Y I N G C L A I M S .6 Bam ett also alleges that Defendants Bowen and Brown were unjustly enriched as a result of7 their actions in allowing D un n's candidacy to proceed. (FAC , ff 136-37.) Ba m ett's claim8 however, relies solely on the allegations that defendants' actions constitute comm on law9 violations "for unjust enrichment to damage Plaintiff' for an undisclosed amoun t. (FAC , f 137.)

10 As noted above, Bam ett has failed to present any allegations sufficient for stating a cause of11 action against either Bow en or Brown . She therefore cannot state a claim that Bow en or Brown12 are unjustly enriched by their actions. For this reason, the Court should sustain defenda nts'13 demurrer as to Ba m ett's Seventh Cause ofA ction14 V . T H E C O U R T S H O U L D D E N Y B A R N E T T A NY F U R T H E R L E A V E T O A M E N D H E R

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After a demurrer has been fully argued, the Court can sustain the demurrer, but shouldallow leave to amend if "there is a reasonable possibility that a defect in the complaint can becured by am endment or that the pleading liberally constraed can state a cause of action." (MinskyV City of L os Angeles (1974) 11 Cal.3d 113 ,118 .) The Court, however, may sustain a demurrerwithout leave to amend if there is no "reasonable p ossibility" that the com plaint's defect can becured by ame ndm ent. (Blake v i


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Documents

BARNETT v DUNN (STATE CASE CALI) - Memorandum of Points and Authorities - DefaultDMS