barnett v. dunn 1st amend oc answer

8/9/2019 Barnett v. Dunn 1st Amend OC Answer

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Post Office Box 1379Santa Ana. California 92702-1 379

I~ el e~ h on e ' : (714) 834-6298Facsimile: (714) 834-2359

11Attorneys for Neal K elley, O range County R egistrar of VotersExempt From FilBrg Fees Pursuant tu Gov't Code $6103

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO

11PAMELA BARNETT, ) Case No. 34-2010-00077415

DAM ON JERRELL DUNN , et al.

1) NOTICE OF DEMZTRRER AND) DEMURRER BY DEFENDANT NEAL

Plaintiff, ) KELLEY, ORANGE COUNTY) REGISTRAR OF VOTERS, TOj PLAINTIFF~S IRST AME'NDED) COMPLALNT)

j (Cal. Code C iv. Proc. 5 430.10)

j DATE: October 25 ,201 0Defendant. ) TIME: 9:00 a.m.

) DEPT: 54) JUDGE: The Hon. Shelleyame Chang)

j Action Filed: May 10,201 0- ) Trial Date: Not yet set

TO ALL. PARTIES A ND THEIR ATTOR NEYS OF RECORD:

PLEASE TAKE NOTICE THAT on O ctober 25 ,20 10 at 9:00 a.m., in Department 54 of the

1Superior Court of the S tate of California, County of S acramento, located at 720 9Ih Street, Sacramento,

Ca lifo~ nia 58 14, Defendant Neal Kelley, sued in his official capacity as the Orange County Registrar of'

Voters ("OC Registrar") will, and hereby does, demu r to the First Amended Complaint ("FAC") filed by

Plaintiff Pamela Bamett ("Plaintiff').

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NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT

REGISTRAR OF VOTERS, TO PLAINTIFF'S FIRST AMENDED COMPLAINT


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This demurrer is brought and filed on the following grounds:

DEMURRER

1. Th e Complaint, in its entirety, andlo r as to each asserted cau se of action fails to allege

facts sufficient to state any cause of action against the OC Registrar (Code of Civil Procedure ("CCP")

section 430.10(e)) because the O C Registrar is imm une from liability pursuant to Government Code

section 815.6 (no mand atory duty violated);

2. The Complaint, in its entirety,andlor a s to each asserted cause of action fails to allege

facts sufficient to state any cau se of action against the OC Registrar (CCP section 430.10(e)) because

Pla int iffs exclusive remedy is a Petition for W rit of Mand ate pursuant to Elections Code section 13314

3. Th e first cause of action to the FA C entitled "Defendant Du nn Maliciously Violated CE(

[Californ ia Elections Code] 2150(a)(l), @), CEC 5 201" fails to allege facts s ufi cie nt to state any

cause of action against the O C Registrar. (CCP 430.10(e).) In addition, this cause of action is barred

because it is uncertain, amb iguous and unintelligible. (CC P5 430.10(f).)

4. The second cause of action to the FAC entitled "Spoliation and Attempted Spo liations oj

Evidence" fails to allege facts sufficient to state any cause of action against the OC Registrar. (CC P5

430.10(e).) In addition this cause of action barred because it is uncertain, am biguous and unintelligible

(CCP8

430.10(f).)5. The third cause of action to the FAC entitled "Defendants Bowen , Kelley, Dunn Violatel

CEC 5 2150, 6 2153 and 5 215 4 and related law" fails to allege facts sufficient to state any cause of

action against the OC Registrar. (CCP5 430.10(e).)

6. The fourth cause of action to the FAC entitled "Defendants Bow en, Kelley, Dunn, Brow

Act Contrary to Public Policy/Interest" fails to allege facts sufficient to s tate any cause of action against

the OC Registrar. (CCP 5 430.10(e).) In addition, this cause of action is barred because it is uncertain,

ambiguous and unintelligible. (CCP5 430.10(f).)

7. The fifth cause of action to the FAC entitled "Defendants Bo wen and Kelley Acted with

Undue Influence in that Defendant Dun n Maliciously Violated C EC5 2150(a)(l)/(b) with the

NVR AIHAV A and related law" fails to allege facts sufficient to state any cause of action against the0 (

Registrar. (CCP 430 .1 O(e).)

I -7-NOTICE OF DEMURR ER AND DEMURRER BYDEFENDANT NEAL K E L L E Y , ~ A N C E O L ?REGISTRAR O F VOTERS, TO PLAINTIFF'S FLRST AM ENDED COM PLAINT


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1 8. The six th cause of action to the FA C entitled "Breach of Fiduciary Duty" fails to allege

1facts sufficient to state any cause of action against the OC Registrar. (CCP 430.10(e).)9. The seventh cause of action to the FA C entitled "Unjust En richment" fails to allege facts

sufficient to state any cause of action against the O C Registrar. (CCP5 430.10(e).) Additionally, to the

extent that Plaintiff se eks a monetary award as pled in the seventh cause of action , the FAC fails to

allege compliance with the applicab le government claims statutes, which is a condition precedent to the

filing of a complaint seeking damag es against a government entity. (CCP5 430,10(e).)

This Demurrer is based upon this Notice, the concurrently filed Mem orandum of Points and

Authorities in Support of Dem urrer, any other documentary evidence and argumentas may be filed prio

to or at the hearing on the Dem urrer, and all papers, files and records in this action.

NOTICE PURSUANT TO LOCAL RULE 2.04

Pursu ant to Local Rule 2.04, th e court will make a ten tative ruling on the merits of this matter by

2:00 p.m., the court day before the hearing. You may access and download the court's ruling from the

court's website ath~: / /www.saccour t .ca .~ov. f you do not have online access, yon may obtain the

tentative ruling over the telephone by calling (916) 8 74-8142 and a depu ty clerk will read the ruling to

you. If you wish to request oral argument, you must contact the courtroom clerk at (916) 874-7858

(Departmen t 53) or (916) 874-7848 (Department 54) and the opposing party before 4:00 p.m. the court

day before the hearing. If you do not call the court and the opposing party by4:00 p.m. on the court day

before the hearing, no h earing w ill be held.

DA TED : August 12 ,2 01 0 Respectfully submitted,

NICHOLAS S. CHRISOS, COUNTY COUNSELand WEND Y J. PHILLIPS, SENIOR DEPUT Y

Attorneys f i M ea 1Kelley, O range County Registrar ofVoters

-3-NOT ICE OF DE-R AN D DEMURRER BY DEFENDANT NEAL KELLEY, ORANGE COUNTY

REGISTRAR OF VOTERS, TOPLAINTIFF'S

FIRST AMENDED COMPLAINT


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PROOF OF SERVICE

I do hereby declare that I am a citizen of the United S tates employed in the County of Orange,over 18 years old and that my business address is 333 W est Santa Ana Boulevard, Suite 407, SantaAnaCalifomia 92702-1379. Iam not ap ar ty to the within action.

On A ugust 12 ,20 10, I served the foregoingNOTICE OF DEMURRER AND DEMURRF,RBY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS, TOPLAlNTIFF'S FIRST AMENDED COMPLAINT on all other varties t o this action by vlacine a true.11copy of said document in a sealed envelope in the following mannkr: -

[XI (BY U.S. M AIL) I placed such envelope(s) addressed as sho wn below for collection and mailin]at Santa Ana, Califomia, fo llowing our ordinary business practices. I am readily fam iliar with thisoffice's practice for collecting and processing correspondence tor mailing. On the same day thatcorrespondence is placed fo r collection and mailing, it is deposited in the ordinary cou rse of businesswith the United S tates Postal S ervice in a sealed envelope with postage fully prepaid.

I[XI (BY FA CSIM ILE) I caused such document to be telefaxed to the addressee(s) and number(s)show n below, w herein such telefax is transmitted that same day in the ordinary course of business.[XI (STATE) I declare under penalty of perjury under the laws o f the S tate of California that theforegoing is true and correct.

0 . cevmAnthony Lievanos

I NAME A N D ADDRESS TO W O M SERVICE WAS MADEI IVia US Mail Only

Pamela Barnett -2541 Warrego WaySacramento, Califomia 95826

I IVia Fax & US MailCharles H Bell. Jr . Esa.

Plaintiff in Pro Per

Attorneys for Defendant Dam on Jerrell Dun n

I I. , .

Brian T H ildreth, Esq.Bell. M ch dre w s . & Hiltachk. LLP455 c ap it ol ~ a l 1 , ' ~ u i t e01Sacramento, CA 958 14Fax: 916-442-7759

Via Fax & US Mail Attorneys for Defendants Edrnund G. Brown,Anthony P. O'Brien, Deputy Attorney General Jr., California Attorney General and DebraOffice of The C alifornia Attorney General Bowen, California Secretary of State1300 I Street, Suite 125P.O. Box 944255Sacramento, Califomia 94244-2550Fax: 916-324-8835

PROOF OF SERVICE


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NICHOLAS S. CHRISOS, COUNTY COUNSELand WENDY J. PHILLIPS, SENIOR DEPUTY -- State Bar No. 178452333 West Santa h a oulevard, Suite 407Post Office Box 1379Santa h a , Califomia 92702-1379Telephone: (714) 834-6298Facsimile: (714) 834-2359

1Attorneys for Neal Kelley, Orange County Registrar of VotersExempt From Filing Fees Pursuant to G ov 't Code j 10 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO

Plaintiff,

Defendant.

Case No. 34-2010-00077415

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEMURRER TO FIRST AMENDEDCOMPLAINT BY DEFENDANT NEALKELLEY, ORANGE COUNTYREGISTRAR OF VOTERS

"TELEPHONE APPEARANCE"

DATE: October 25, 2010TIME: 9:00 a.m.DEPT: 54JUDGE: The Hon. Shelleyanne Chang

Action Filed: May 10, 2010Trial Date: Not yet set

MEMORANDUM O F POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED

COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS


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Table of Contents

. . .Table of Authorltles ............................................................................................................................... 1

1. INTRODUCTION ..................................................................................................................

2. ARGUMENT .........................................................................................................................

A. The OC Registrar's Demurrer Should be Sustained Without Leave

to Amend A s the Registrar is Immune From Liability on Any Theory............................

B. Plaintiff's Exclusive Remedy to Challenge Dunn 's Candidacy Was and

Is a Petition for Writ of Mandate A s Allowed by the Elections C ode..............................

C. The F AC Fails to Allege Facts Sufficient to State a Cause of Action as

to Each of the Individual Causes of Action Stated in the FAC ........................................D. This Demurrer Should B e Sustained as To the Seventh Cause of

Action Because Plaintiff Failed to Exhaust Her Administrative. .

Remedy of Flllng a Govem ment C laim............................................................................

E. The First, Second and Fourth C auses of Action are Uncertain..................................... 10

F. The Demurrer to the FAC Should B e Sustained Without Leave to Amend................... 1 1

1MEMORANDUM O F POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED

COMPLAINT BY DE FEm AN T NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS


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1

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3

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Table of Authorities

Cases

Alliance for a Better D owntown M ilbrae v. Wade...............................................................................................................2003) 108 Cal.App.4th 123 4

5

6

Ankeny v. Lockheed M issiles and Space Center................................................................................................................1979) 88 Cal.App.3d 531 10

7

8

Baines Pickwick Ltd. v. City of Los A ngeles...................... .....................................................................................1999) 72 Cal.App.4th 298 .. 9

9

10

Cedar-Sinai Medical Center v. Superior Court.............................................................................................................................1998) 18 Cal.4tll 1 6

11

12

Chambers v. Ashley..................................................................................................................1939) 33 Cal.App.2d 390 5

dz w 13u 0

$2 14Cooper v. State Farm M utual Automobile Ins. Co.

...................................................................................................2009) 1 77 Cal.App.4th 876, 89 2 6, 76 .u 0

15-38 0,u 16

Coronado v. Su n Diego Unijied Port Dist.................................................................................................................1 964) 227 Cal.App.2d 4 55 4

z8 1 7

18

Dalton v. East Bay Municipal Utility Dist................................................................................................................1993) 18 Cal.App.4th 1566 9

1 9

20

Dinosaur Development, Inc. v. White..............................................................................................................1989) 216 Cal.App.3d 1310 8

21

22

Dujardin v. Ventura County G eneral Hospital................................................................................................................1977) 69 Cal.App.3d 350 10

23

24

Durell v. Sharp Healthcare

......................................................................................................2010) 183 Cal.App.4tll 1350 8 , 9

25

26

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MEMORANDUM OF POINTS AN D AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED


Fiol v. Doellstedt(1996) 50 Cal.App.4th 1318............................................................................................................. 11

27

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Gurrola v. County of Lo s Angeles(1984) 153 Cal.App.3d 1 45.............................................................................................................. 10


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1

2

Haggis v. City ofL os Angeles.........................................................................................................................2000) 22 Cal.4th 490 2

3

4

Hart v. County ofAlameda................................................................................................................1999) 76 Cal.App.4th 766 9

5

6

Huston v. Anderson........................... ............................................................................................1904) 145 Cal. 320 .. 3

7

8

McBride v. Boughton(2004) 123 Cal.App.4th 379........................................................................................................... , 9

Krug v. Meeham..............................................................................................................1952) 109 Cal.App.2d 274 7

9

10

Melchior v. h'ew Line Productions, Inc.(2003) 106 Cal.App.4th 779...............................................................................................................

Ley v. Dominguez.........................................................................................................................1933) 212 Cal. 587 4

Oakland Raiders v. National Football League..............................................................................................................2005) 131 Cal.App .4th621 8

Pohlmannv.

Patty(1917) 33 Cal.App. 390......................................................................................................................

2 1 11Smith v. Minnesota Mutual Life Ins. Co.

19

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Searcy v. Heinet Unijied Schoo l Dist.................................................................................................................1986) 177 Cal.App.3d 792 2

23

24

Stracke v. Farquar

..........................................................................................................................1942) 20 Cal.2d 82 5

25

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...111

MEMORANDUM OF POINTS AN D AUTHORITIJ%S IN SUPPORT OF DEMURRER TO FIRST AMENDED

COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY R EGISTRAR OF VOTERS

Temple Comm unity Hospitalv. Superior Court...........................................................................................1999) 20 Cal.4th 464........................ .. 6

27

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FVashington v. County ofc on tra Costa(1995) 38 Cal.App.4th 890.................................................................................................................


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1

2

Webb v. Saunders(1947) 79 Cal.App.2d 863 ........................................................................................................... 7

3

4

Williams v. Horvath(1976) 16 Cal.3d 834 9

5

6

W o r v . Superior Court(2003) 107 Cal.App.4th 25 ..........................................................................................................

7

8

Art. 11, Section 2 ............................................................................................................................. 3Art. 11, Section 2.5 5

Wo od v. Riverside General Hospital(1994) 25 Cal.App.4th 11 13 . ...................................... 10

9

10

Statutes

California Constitution

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%5 13s s$7 14g 8zg 15g8 16E

17

20 California Government CodeI I

California Civil Code

Section 1575 ...................................................................................................................................

California Code of Civil Procedure

Section 430.10(f) 10

California Elections Code

18

19

Section 2101 ............................................................................................................................ 3Section 13314(a)(l) .............................................................................................................. 4Section 133 14(a)(2)(A)-(B) .................................................................................................

23 California Code of RegulationsI1

21

22

24 11Section 19050.6(e) ......................................................................................................................

Section 815.6 1, 2Section 905 .................................................................................................................................... 9Section 945.4 9

25 Attornev General OpinionsI I

ivMEMOR ANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED

COMPLAINT BY DEFENDANTNEAL

KELLEY, ORANGE COU NTY REGISTRAR OF VOTERS


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Defendant, Neal K elley, the Orange County Registrar of Vote rs, by and through his attorneys of

record N icholas S. Chrisos, County Counsel and Wendy J . Phillips, Senior Deputy, respectfully su bm ib

this Mem orandum of Points and Authorities in Support of Demu rrer to Pla inti ffs First Amended

Complaint.

1. INTRODUCTION

Plaintiff, Pamela Bam ett, originally filed a Com plaint in this action on May 10, 2010, naming as

Defendants D amon D unn, the Republican candidate for Secretary of S tate, Debra Bowen , the incumben

Dem ocratic candidate for Secretary of State and Edmund G. Brown, Attorney General. On July 20,

201 0, Plaintiff filed a First Amended Com plaint ("FAC") adding Defendants Neal Kelley, the Orange

County Reg istrar of Voters ("OC Registrar"), and the U.S. Election Assistance Commission. The OC

Registrar demurs to the FA C on multiple grounds as set forth in the No tice of Demurrer and D emurrer

filed concurren tly herewith.

Underlying the FA C are two prevailing allegations: 1 ) Defendant D unn submitted an incomplete

voter registration when he registered to vote in Orange County in March 2009, which should not have

been accepted as complete by the O C R egistrar because Dunn had failed to complete the "prior

registration" section of the form; and 2) Defendant Dunn was erroneously allowed to declare himself a

cand idate for Secretary of State for the Rep ublican primary in June of this year because Plaintiff allegesDunn had no t been a registered Republican fo r a sufficient time under the E lections code (this allegation

is dependen t on the first allegation that the voter registration form was erro neously accepted). But for

the allegations relating to the election of President Obam a, which have n o p lace in this case, all of the

other allegations in the FA C relate back,in som e way, to these two primary allegations.

The OC R egistrar respectfully requests that this Court sustain this demurrer without leave to

amend. Th e FAC in its entirety, and each o f the causes of action stated therein, fail to allege facts

sufficient to state any cau se of action against the O C Registrar for one or more o f the following reasons:

(1) the O C Registrar is imm une from liability as no mandatory duty has been violated (Cal. Gov. Code5

815.6); (2) P lain tiffs exclusive remedy is a Petition for Writ of Man date; and(3) to the extent Plaintiff

11seeks monetary d amages in the seventh cause of action, her failure to allege com pliance with theGovernm ent Claims Act is fatal to the cause of action. Additionally, the first, second and fourth causes

- 1 -MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED

I COMPLATNT BY DEFENDANT NEAL KEJLEY, O U Y G E COUNTY REGISTRAR O F VOTERS I


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COMPLAINT BY DEFENDANT NEAL KEL LEY , ORANGE COUNTY REGISTRAR OF VOTERS

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of action in th eFAC are uncertain, vague and unintelligible, making them prey to demurrer.

2. ARGUMENT

A. The OC Registrar's Demurrer Should be Sustained Without Leave

to Amend As the Registrar is Immune From Liability on Any Theory.

As a general rule, a public entity cannot be liab le unless it is alleged to have violated a

mandatory duty. The requirement tha t a com plaint against a public entity specifically allege the

violation of a statuteiregulation which imposes a mandatory duty has been describedas a "'gateway to

recovery."' (Washington v. County of Contra Costa (199 5)38 Cal.App.4th 890, 896.) To state a cause

of action aga inst a governmental entity, "every fa ct essential to the existence of statutory liability must

be pleaded w ith particularity, includ ing the existence of a statutory duty."(Searcy v. Hemet Unzfied

School District (1 98 6) 177 Cal.App.3d 792 , 802.) This requirement is born fiom Government Code

section 8 1 5.6: "Where a public entity is under a mandatory du ty imposed by an enactment that is

designed to protect against the risk of a particular kind of injury, the public entityis liable for an injury

of that kind proximately caused by its failure to discharge the d uty..."

In Haggis v. Ciiy of Los Angeles (20 00)22 Cal.4th 490, the C alifornia Supreme Court discussed

the requirement that a plaintiff allege the violation o f a mandatory duty before liability can exist against

a public entity. When considering whether a public entity has a man datory duty, thus giving rise toliability under Government Code8 1 5.6, the purpose of the ordinance or l aw which creates the

mandatory duty must be exam ined closely to determ ine whether the injury alleged in the lawsuit was of

the type which the mandatory duty was intended to prevent.(Haggis, supra, at 503.) Even where a

mandatory duty is alleged, the immunity provisions of the Governm ent Code could apply to imm unize

the public entity from liability.(Id. at 503-504.)

Plaintiff has failed to identify any mandatory duty that the OC Registrar ow es to Plaintiff that

can form the basis for the FAC and the causes o f actions stated therein. Plaintiff complains that the OC

Registrar erroneously accepted Defendant Dunn's affidavit of registration in March2009 because Dunn

had failed to comp lete the prior registration portion of the affidavit. Plaintiff also complains that theOC

Reg istrar's subsequent certification of Dunn 's e ligibility as a Republican candidate for the Secretary of

State was premised upo n the allegedly erroneous registration. P lai nt iff s allegations are based on the


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2 disqualifies a person from registering to vote; this is simply not the case.I I II

To qualify to register to vo te, a person mus t be a citizen of the United States, a resident of I

faulty premise that the "prior registration" section of the voter registration form, if not completed,

6 completes a voter registration affidavit attesting to these minim um basic factors, which entitle him toI I I

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California, "not in prison or on parole o f the conviction of a felony and at least 18 years of age at the

time of the next election." (Cal. Elec. Code5 2101; accord, Cal. Const.art. LI, sec. 2.) If a person

9 wh ich a person was registered to vote is insufficient grounds to disqualify the person from voting soI I I

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10 long as the person was qualified to vote and the local elections official in fact registered the person toI I

register to vote, the local elections official has no grounds to deny the registration. (See generally

Huston v. Anderson (1904) 145 Cal. 32 0,3 24 (holding that intbrmality or irregularityin the method by

11 vote); accordPohlmann v. Patty (191 7 ) 33 Cal.App. 390.)I I I

d S28 16 I Iinform ation is missing from a voter registration form . With regard to prior registrations the regulationsI

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17 prov ide "If no prior registration is shown, it shall be presumed that the person i s not registered to voteinI I

The voter registration affidav it completed byDunn was silent on the issue of prior registration.

No provision of the Elections Co de places a duty upon the OC Reg istrar to obtain prior registration

inform ation when left blank by a person completing an affidavit for registration.In fact, Title 2 of the

California Code of Regulations, section 19050.6 establishes presumptions the registrar is to apply if

18 California." (2 C.C .R.3 19050.6(e).) "An elector's affidavit of registration as a voter shall be validI I I

The OC Registrar asserts that his duty is to confirm that the affidavit contains the necessary I

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notwithstanding the failure to com plete the information to which the above presumptions apply, absent

evidence rebutting the presumption." in bid.)'

' The Attorney G eneral has o ined that to the extent the presumption in the Code of Regulations2 CCR 19050.6, are in conflict wit! the E lections Code the presumptions in the regulation should notapply. (67 0ps.Cal.Atty.Gen. 446 (19 84).) However, the Attorney General's opinion is merelypersuasive authority. The O C Registrar asserts that because the Elections Code is silent on anypresum ption that may apply wh en the prior registration section of the voter affidavit is left blank, thepresumption in 2 C.C.R. $ 19050.6(e) controlsand is not in conflict with the E lections Code.

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- 3 -MEMORANDUM O F POINTS AND AUTHORITIES IN SUPPORT OF

COMPLAINT BY DEFENDANT NEAL KELLEY , ORANGE COUNTY REGISTRAR OF VOTERS

inform ation to qualify the person to vote. (See Cal. Elec. Cod e 2101.) If these factors appear on the

face of the affidavit the Registrar cannot reject the affidavit andlor refuse to register the person as a


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- 4 -MEMORANDUM OF POINTS AN D AUTHORITlES IN SUPPORT OF DEiMURRER TO FIRST AMENDED

COMPLA UiT BY DEFENDANT NEAL KELLEY, ORANG E COUNTY REGISTRAR OF VOTERS

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voter. As a ministerial officer, the OC Reg istrar has no autho rity to go beyond the facts presented on th

form s presented to the office. (See generallyAllian cefor a Better Downtown Milbraev. Wade (2003)

108 Cal.App.4th 1 23.) A registration form, which is normal on its face, like the one executed by Dunn

was, m ust be accepted by the Registrar. As a m atter of public policy the registration "rules should be

construed to permit the greatest number of qualified voters to exercise their rights."(Coronado v. San

Diego UnrJied Port D ist. (1964) 227 Cal.App.2d 455, 468, citingLey v. Dominguez (1933) 212 C al.

587.) Moreover,

Here, the OC Registrar properly performed his dutyand properly applied the presumption

established by the Code of Regulations when he accepted the affidavit of registration completed by

Dunn. Because the P laintiff has failed to identify a duty owed to Plaintiff by the OC R egistrar, and

because the facts before the C ourt demonstrate that the OC Registrar complied w ith his statutory and

regulatory duties in registering D unn, this demurrer should be sustained.

B. Plaintiff's Exclusive Remedy to Challenge Dunn's Candidacy Was and

Is a Petition for Writ of Mandate As Allowed by the Elections Code.

Any elector who claims that an error or om ission has "occurred, or is about to occur, in the

placing of a name on .. a ballot" is entitled to file a Petition for Writ of Mandate t o challenge the error

or omission. (Cal. Elec. Code5

13314(a)(1).) A peremptory w rit shall not issue unless there is proofthat th e "error, omission, or neglect is in violation of this code o r the Constitution,"and "the writ will

not substantially interfere with the conduct of the election." (Cal. Elec. Code5 13314(a)(2)(A)-(B).)

Plaintiff is claiming that D efendantDunn was not qualified to be a cand idate for Secretary of State on

the Repub lican primary ballot in June and that Dunn should not be allowed to appear on the November

general election ballot as the Republican nominee for Secretary of S tate, notwithstanding the fact that

Dunn w on the Republican primary. Pl ai nt iffs claim s are precisely the kind that are required to be

addressed via a Petition for Writ of Mandate under E lections Code section 133 14before the name

appears o n the ballot and before voters exercise their right to vote. Pl ai nt iffs delay in seeking the relief

she should have sought as allowed by section 13314 necessarily endangers the November general

election.


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statewide who cast their vote for Dunn. "A vo ter who casts a vote in an election in accordance with the

laws of this State shall have that voted counted." (Cal. Const.art. 11, sec. 2.5.) There is no doubt that if

this Co urt were to grant the relief sought by Plaintiff, the primary election that has already passed w ill

be sub stantially interfered with because i t would completely undo the Repub lican primary as it relates tc

the office of the Secretary of State. Cou rts have properly denied as untimely actions to omit namesfron

the ballot once the election has begun or even ended. (See Strackev. Fa rq ua r (1942) 20 Cal.2d 82; see

also Cham bersv. Ashley (1939) 33 Cal.App.2d 39 0,3 91 (denying as moot a writ to keep the name of a

judge off the primary election ballot when the primary election has already passed).)

Perhaps P laintiff recognized that her late filing of this law suit would have been a bar to relief

under the Election s Code so instead she has attempted to contrive other causes of action against

Defendants. However, notwithstanding a good effort by Plaintiff, the fact remains that the FAC fails to

allege any cognizab le claim for relief against the O C Registrar. Moreover, Plaintiff cannot be allowed

to circumvent the legislatively established remedy o f a Petition for Writ of Mandate for electors who

claim there is an error on a ballot. This demurrer should be sustained because P laintiff failed to pursue

her statutorily es tablished remedy of a Petition fo r Writ of Mandate. Th is Court cannot and should not

condone Plaintiffs' failure to timely seek relief under the Election s Code and potentially disenfranchise

the more than 1.4 million voters who cast their vote forDunn.

C. The FAC Fails to Allege Facts Sufiicient to State a Cause of Action as

to Each of the Individual Causes of Action Stated in the FAC.

Plaintiff alleges seven different causes of actionin the FAC. This Demurrer should be sustained

as the FA C does not contain sufficient facts to support any of the alleged causes of action. A "cause o f

action arises ou t of an antecedent primary right and co rrespon ding duty and the delict or breach of such

primary right and duty by the person o n whom the duty rests." (Smithv. Minnesota Mu tual Life Ins Co.

(1948) 86 Cal.App.2d 581, 590.) Unless P lain tiffs F AC alleges the violation of some primary right

wh ich the OC R egistrar had a corresponding duty to perform for the benefit of Plaintiff, then the FAC

fails to state a cause of action against the O C Registrar and this demurrer should be su stained.

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- 5 -I MEMORANDUM OF POINTS AN D AUTHORITIES JN SUPPORT OF DE-R TO FJRST AMENDED 1

Moreover, the relief that Plaintiff seeks would disenfranchise the more than 1.4 million voters

I COMPLAINT BY DEFENDANT NEAL KBLLEY, ORANGE COUNTY REG ISTRAR OF VOTERS I


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Pl ain tiff s first cause of action alleges "Defendant D unn M aliciously V iolated CEC [California

Elections Code] 5 2150(a)(l) ,(b), CEC 5 201." Plaintiff does not specifically identify the OC Registrar

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8 elections code. Quite frankly, there is no cause of action stated because Plaintiff has no rights underI I I

as a Defendant against whom this cause of action is alleged. However, in paragraph 41 of the FAC ,

wh ich is under the first cause of action, Plaintiff makes an allegation against the O C Registrar, stating

that "Plaintiff.. . suffered irreparable harm when Defendant Dunn was allowed by. Kelley to

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9 sections 21 50 and 201 as it pertains to Dunn's registration to vote and declaration o f candidacy, and theI

participate in the Republican Party primary as a Republican Party elector." (FAC7 41.) This single

allegation against the O C Registrar fails to allege a cause of action for malicious violation of the

10 OC Registrar owes no duty to Plaintiff arising fio m these statutes. Even if the OC Registrar'sI Iacceptance of Dunn 's v oter registration form w as improp er (which the OC Registrar asserts it was not)

that fact does not give Plaintiff a cause of action.

The second cause of action for "Spoliation o f Evidence" similarly must fail. There is no tort for

spoliation of evidence, whether the spoliation is alleged against a first party or a third party. (Cedar-

Sin ai Medical Centerv. Sup erior Co urt (1998) 18 Cal.4th 1, Temple Comm unity Hospitalv. Superior

Co urt (1 999) 20 Cal.4th 464.) Cou rts have recognized a possible cause of action for spoliation of

evidence where facts supporting the con tract principle of "action in reliance" or the tort theory of"assumption of duty" are present. (Cooperv. State Farm Mu tual Automobile Ins. C o. (2009) 177 Cal.

App.4th 876, 892.) However, P lain tiff s FAC fails to allege any facts supporting a cause of action for

20 spoliation of evidence. According to Plaintiff, the OC Registrar spoiled evidence by "certifying" theI I 1

23 / /crime" by trans ferring the employee who certified Dunn's registration form to a d ifferent area of the I

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24 Registrar's office (FAC 7 52); and other inapposite claims. A crucial element to any spoliation ofII I

registration form in a man ner that "covered up the affirmation section" of the form (FAC7 48);

"concealed evidence" that Dunn's registration form was not properly executed (FAC7 51); "concealed a

evidence cause of action is the actual destmction or loss of evidence. Plaintiff fails to mak e any such

allegation because no evidence has been des troyed o r lost. In fact th e OC Reg istrar retains a copy of a

2 7 D ur n' s voter registration form as required by law. Moreover, Plaintiff has not alleged any factsI I28 supporting "action in reliance" o r "assumption o f duty," w hich are the only grounds up on which a




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5 owe a duty to Plaintiff as a result of the statutes as they pertain to Du rn 's voter registration.I I

spoliation cause of action may be viable. (Cooper, supra, at 892.)

Pla inti ffs third cause of action is entitled "Defendants. Kelley . . Violated CEC 5 21 50, 5

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11 Pla int iffs fourth cause of action alleges that the O C Registrar acted "contrary to public I

2153, and 5 2154." Like the first cause of action, this cause of action fails to s tate a claim upon which

relief can be granted because Plaintiff has no rights arising from these statutes nor do es the OC R egistrar

7 policylinterest." Just like the other causes of action there are no facts supporting this cause of action thaI8 give rise to a duty that the OC Registrar violated which was owed to Plaintiff that might give rise to aI

11 duty of performance o wed to Plaintiff means this cause of action also fails to state a claim upon whichI

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relief can granted

rem edy . A blanket allegation that he OC Registrar failed in his "ministerial duties" (FAC7 81) without

specific allegations of what ministerial duties the O C Registrar failed to perform and why there was a

Pla inti ffs fifth cause of action is for undue influence.

Undue influence [is] that k i d of influence or supremacy of one mind overanother by w hich that other is prevented from acting according to his own w ish orjudgment, and whereby the w ill of the person is overborne and he is induced to door forbear to do an act w hich he w ould not do, or would do, if left to act freely.

(Webb v. Saunders (1947) 79 Cal.App.2d 863, 871.) Similarly, undu e influence is defined by statute to

consist of:

1. In the use, by one in whom a confidence is reposed by another, or who holds areal or apparent authority over him, o f such confidence or authority for thepurpose o f obtaining an unfair advantage overhi ; . In taking an unfairadvantage of another's weakness of mind; or, 3. In taking a grossly o ppressive andunfair advan tage of anoth er's necessities or distress.

(Civ. Code 5 1575;Krugv. Meeham (1952) 10 9 Cal.App.2d 2 74,276 .) Given these definitions of

23 undu e influence it is clear that Plaintiff has failed to state a cause of action. She has alleged no factsII I24 demonstrating a relationship between herself and the OC Registrar that would give rise to the OCII I25 Reg istrar exercising undue influence over Plain tiff to obtain an unfair advantage.I I I26 II Plain tiffs sixth cause of action is for breach of fiduciary duty. There are so me basic principles27 of the law of fiduciary du ty.I I




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"[A] fiduciary relationship is a recognized legal relationship such as guardian andward, trustee and beneficiary, . [citation]." [Citation omitted.] A fiduciary mustgive "priority to the best interest of the beneficiary. [Citation.]" [Citationomitted.] In addition . the fiduciary also is required to manage the subjectmatter of the relationship (or res) with due care; must account to the beneficiary,and must keep the beneficiary fully informed as to all matters pertinent to thebeneficiary's interest in the res. [Citation omitted.]

5 (OaklandRaiders v. National Football League (2005) 131 Cal.App.4th 621,632; accord Wolfv.I I6 Superior Court (2003) 107 Cal.App.4th 25.) In the absence of evidence of a fiduciary relationship,I7 either as a matter of law or by the actions of the parties, there can be no cause of action for breach ofI I8 fiduciary duty. (Raiders, supra, at 642.) Here Plaintiff has failed to allege the existence of any fiduciarI9 relationship between herself and the OC Registrar. She cannot allege such facts because there is no sucI I

Plaintiff s seventh cause of action is for Unjust Enrichment, however there "'is no cause of

action in California for unjust enrichment.' (Afelchior v. New Line Productions, Inc. (2003) 106

Cal.App.4th 779, 793; [citation omitted])," rather, "'unjust enrichment is synonymous with restitution.'

(Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314.)." (Durell v. Sharp

Healthcare (2010) 183 Cal.App.4th 1350, 1370.) Thus, to determine whether Plaintiff has stated a caus

of action for unjust enrichment we analyze the elements of cause of action for restitution.

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"There are several potential bases for a cause of action seeking restitution. Forexample, restitution may be awarded in lieu of breach of contract damages whenthe parties had an express contract, but it was procured by fraud or isunenforceable or ineffective for some reason. [Citations.] Alternatively,restitution may be awarded where the defendant obtained a benefit from theplaintiff by fraud, duress, conversion, or similar conduct. In such cases, theplaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory . . [Citations.] In such cases, where appropriate, the law willimply a contract (or rather, a quasi-contract), without regard to the parties' intent,in order to avoid unjust enrichment."

relationship and the OC Registrar owes no duty to Plaintiff under the facts of this case. Therefore, there

can be no cause of action for breach of fiduciary duty. (Ibid.)

(Durell, supra, at 1370, quoting McBride v. Boughton (2004) 123 Cal.App.4th 379,388.)

"Under the law of restitution, '[aln individual is required to make restitution if heor she is unjustly enriched at the expense of another. [Citations.] A person isenriched if the person receives a benefit at another's expense. [Citation.]'[Citation.] However, '[tlhe fact that one person benefits another is not, by itself,sufficient to require restitution. The person receiving the benefit is required tomake restitution only if the circumstances are such that, as between the twoindividuals, it is unjust for the person to retain it. [Citation.]' "

- 8 -MEMORANDUM O F POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED



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- 9 -MEMOR ANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED

COMPLAINT BY DEFENDANT NJCAL KELLEY, ORANGE COUNTY REGISTRAR O F VOTERS

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130 W0 0

$3140 ".u 09rC l 5-58 0,u 1625

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(Durell supra, at 1370, quoting McBride, supra, at 389.) In the instant case, Plaintiff has not and

cannot allege the necessary elements to establish a cause of action for unjust enrichment or restitution.

The OC Registrar did not receive any monetary or other tangible benefit from Plaintiff or anyone else

when he performed his ministerial duty and accepted the voter registration form completed by

Defendant Dunn in March 2009. Similarly, the OC Registrar received no benefit of any kind from

Plaintiff or otherwise for performing his ministerial duty of certifying Dunn's declaration of candidacy

in March 20 10 with regard to the facts that Dunn had been affiliated with the California Republican

Party for at least three months and was not affiliated with any other political party for twelve months

prior to declaring his candidacy for Secretary of State. Without any allegation that the OC Registrar

received a monetary or other tangible benefit at the expense or to the determinant of Plaintiff, there can

be no cause of action for restitution or unjust enrichment; this demurrer should be sustained.

D. This Demurrer Should Be Sustained as To the Seventh Cause of

Action Because Plaintiff Failed to Exhaust Her Administrative

Remedy of Filing a Government Claim.

Under the California Government Claims Act, an essential element of a cause of action for

damages against a public entity, or its employees, is an allegation that the Plaintiff exhausted her

administrative remedies by filing a claim for damages with the Board of Supervisors. Government Cod,section 905 requires an allegedly injured person to present all claims asserted against local public

entities in accordance with the provisions of Government Code section 910, et. seq. Government Code

section 945.4 provides that no suit for money or damages may be maintained against a public entity

unless the Plaintiff has first presented the local entity with a written claim for such damages. A suit for

"money or damages," includes all actions where the Plaintiff is seeking monetary relief, regardless of

whether the action is founded in "tort, contract, or some other theory." (Hart v. Cou nty ofAlan7eda

(1999)76 Cal.App.4th 766 ,778 , quoting Baines Pickwick Ltd v. City ofL os Angeles (1999) 72

Cal.App.4th 298 ,307 . ) Taken together, these statutes required Plaintiff to file a claim for damages,

referencing the alleged misconduct of the OC Registrar prior to filing suit. (Williamsv. Horvath (1976)

16 Cal.3d 834, 838; Dalton v. East Bay Municipal Utilify Dist. (19 93 )1 8 Cal.App.4th 1566, 1571.)


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- l o -MEMORANDUM OF POINTS AND AUTHO RlTIES IN SUPPORT OF DEMURRER TO FJRST AMENDED

COMPLAINT BY DEPENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR O F VOTERS

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Mo reover, i n order to state a cause of action, Plaintiff must plead both timely com pliance with

these claim presentation requirements and denial of the claim by the gov ernmental agency. (Gu rrolav.

C ounty O ~ L O Sngeles (1984) 153 Cal.App.3d 145 , 153.) Failure to include the necessary allegations i~

the Com plaint subjects it to attack by general demurrer. (Du jardinv. Ventura County G eneral Hospitai

(1977) 69 Cal.App.3d 350,355; Woodv. Riverside Gen eral Hospital (19 94) 25 Cal.App.4th 11 13,

1119.)

In her Seventh Cause of Action for Unjust E nrichment, Plaintiff seeks an undeclared amount of

money as damages. (FAC 7 137.) How ever, now here in the FAC does Plaintiff allege compliance wit1

the Government Claims Act. Pla int iffs failure to make this allegation in her FAC is fatal and the

Dem urrer should be sustained as to the Seventh Cause of Action.

E. The First, Second and Fourth Causes of Action are Uncertain.

Co de of Civil Procedure section 430.10(f) provides that a proper basis for a denlurrer is whe re

the complaint is "uncertain." "As usedin this subdivision, 'uncertain' includes ambiguous and

unintelligible." (Ibid.) Case law has held that such defects are grounds f o r .

(Ankeny v LockheedMissiles an ds p ac e Center (1979) 88 Cal.App.3d 53 1,53 7.) Although the entire

FA C may be subject the claim of uncertainty, the first, second and fourth causes of action are

particularly uncertain. In the heading of the first cause of action Plaintiff indicates it is againstDefendan t Dunn, only. But then, in the body of the cause of action, there are a couple of allegations

against the OC Registrar. This makes it entirely unclear as to whether this cause of action is even

alleged against the Registrar. The second cause of action for spoliation of evidence contains allegations

of concealing evidence and unusual allegations that a crime was con cealed when the employee who

certified Du nn's registration form was transferred. These allegations are so vague and unintelligible tha

it is difficult to know how to respond or ho w they relate to a cause of action for spoliation. Finally, the

fourth cause of action suffers from the same problems. Throughout this cause of action, Plaintiff makes

random assertions regarding the election of President O bama and Defendants' alleged failures to

perform duties in relation to confirming President Obama's citizenship before he was declared the

presidential nominee from California. These allegation s are non-sequitors and have no relation

whatsoever to the remainder of the F AC; they render the fourth cause of action uncertain, vagueand


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PROOF OF SERVICE

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[XI (BY U .S. MAIL) I placed such envelope(s) addressedas shown below for collection and mailirat Santa Ana, California, following our ordinary business practices. I am readily familiar with thisoffice's practice for collecting and processing corresp ondence for mailing. On the sam e day thatcorrespondence is placed for collection and mailing, it is deposited in the ordinary course of businesswith the Un ited States Postal Service in a sealed envelope with postage fully prepaid.

I do hereby declare that I am a citizen of the United States employed in the County of Orange,over 18 years old and that my business ad dress is 333 West Santa Ana B oulevard, Suite 407, Santa An aCalifornia 92702-1379. I am not a party to the within action .

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[XI (BY FACSIMILE) I caused su ch document to be telefaxed to the addressee(s) and number(s)

show n below, w herein such telefax is transmitted that same day in the ordinary course of business.

On August 12,2 010 ,I

served the foregoingMEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED COMPLAINT BYDEPENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS on all otherparties to this action by placing a true co py of said docum ent in a sealed envelope in the followingmanner:

[XI (STATE) 1 declare under penalty o f perjury under the laws of the State of California that theforego ing is true and correct.

. ZL~,,Anthony Lievanos

NAME AND ADDRESS TO WHOM SERVICE W AS MADE

Via US Mail Only Plaintiff in Pro PerPamela B arnett

2541 Warrego WaySacramento, California 95826

Via Pax & US Mail Attorneys for Defendant D amon Jerrell DunnCharles H Bell, Jr , Esq.Brian T H ildreth, Esq.Bell, McAndrews, & Hiltachk, LLP455 Capitol Mall, Suite 801Sacramento, CA 95814Fax: 916-442-7759

Via Fax & US Mail Attorneys for Defendants Edlnund G. Brown,An thony P. O'Brien, Deputy Attorney General Jr., California Attorney General and DebraOffice of The California Attorney General Bowen, California Secretary of State1300 I Street, Suite 1 25P.O. Box 944255Sacramento, C alifornia 94244-2550Pax: 916-324-8835

PROOF OF SERVICE

barnett v. dunn 1st amend oc answer

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