EDML'ND G. BROW JR . Attorney General of California STEPHEN . ACQUISTO Supervising Deputy Attorney General ANTHONY . O'BRIEN Deputy Attorney General , State Bar No. 232650 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 323-6879 Fax: (916) 324-8835 E-mail: Anthony.OBrien@doj .ca.gov Attorneys for Defendants Edinund G. Brown Jr., Attorney General, and Debra Bowen, Secretaiy of State 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 A N D DEMURRER TO PLAINTIFF'S COMPLAINT DAMON JERRELL DUNN, ET AL., I (Code Civ. Proc., 5 430.10, subd (e)) - Chang Trial Date: Not Yet Set Action Filed: May 10, 201 0 Defendants. PLEASE TAKE NOTICE 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 Edmund G. Brown Jr. and Debra Bowen will demur to the Complaint of Plaintiff Pamela Bamett. Date: October 25,2010 Time: 9:00 a.m. Dept: 54 Judge: The Honorable Shelleyanne Notice of Demumrr an d Demurrer toPlainliff s Complaint (34-2010-00077415)
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Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
(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 .................................. ... .........................................
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)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
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)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
To the contrary, all available records show that Du nn's only other political affiliation-with the
Florida Demo cratic Party--expired in 2005 after Dunn failed to vote in two consecutive federal
elections. (Req . for Judicial Notice, Exh. B.) So Dunn satisfied the candidacy eligibility
requirements outlined in Elections Code 5 8001, subdivision (a). Secre tary of State Bowen,
therefore, did not violate the Election Code by allowing Dunn's candidacy to proceed. ' For this
reason, the Court should sustain Defendants' demurrer without leave to amend.
Barn ett also argues that the Secretary of Sta te's office failed to respond to inquiries
regarding Dun n's eligibility for candidacy and alleged failure to provide prior voter registration
information when registering to vote in California in March 2009. (Compl. 77 30, 41, 47-50.)
Ba m ett's contentions are false. The Secretary of State investigated and responded to Barn ett's
claims regarding Dun n's eligibility on Ma y 1 2, 20 10. (Req. for Judicial Notice, Exh. B, C.) In its
response, the Sec retary of State's office noted that: (1) Dun n met the eligibility requirements of
Elections C ode 5 8001; and (2) there was no evidence show ing that Dunn intentionally omitted
information o f prior registration when he registered to v ote in California. (Req. for Judicial
Notice, Exh. C .) Moreover, none of Barnett's allegations show that Bowen concealed any facts
regarding Dunn 's eligibility to run for Secretary of State. Th e Court, therefore, should sustain
this demurrer without leave to amend.
'Mo reover, Du nn's past affiliation with the Florida Dem ocratic Party does not qualify as
affiliation with a "qualified po litical party" as defined und er the California Elections Code.
Elections C ode 5 5100 defines a "qualified political party" as ap ar ty that fulfills any o ft he
following conditions related to California elections:
(1) the p arty polled at least 2 percent of the vote in the last gubernatorial election;
(2) the total num ber of voters registered with the party on or before the 135th day beforethe election equals at least 1 percent of the entire vote in the last gubernatorial
election; or(3 ) the party filed a petition with the S ecretary of State, on or before the 135th day before
the primary, with signatures of voters equal to 10 percent of the of the state's entire
vote for the previous gubernatorial election. (Elec. Code 5 5100.)
Barn ett's complaint doe s not present any facts showing that the Florida Democratic Party eversatisfied any of these requirements prior to the June 8, 2010 primary election. Therefore, theFlorida Dem ocratic Pa rty is not a "qualified political party" as defined under Elections Code 88001(b), and D unn's past affiliation with that party would not disqualify his candidacy forSecretary of State under any circumstances.
--Memorandum of Points and Authorities m Support of
Demurrer to Plaintif fs Complaint (34-2010-00077415)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint
111. THECOURT HOULDUSTAIN EFENDANTS'EMURRERS TO BARNETT'SRAUDCLAIM ECAUSEEFENDANTSL F I L L E D LLDUTIESN ENSURINGHAT DUNN'SCANDIDACYOMPLIEDITH ELECTIONAWS.
A. Bowen Did Not Breach Any Duty to Barnett or Defraud Her in VerifyingDunn's Eligibility for Candidacy.
As the chief elections officer of the state, the "Secretary of State shall see that elections are
efficiently conducted and that state election laws are enforced." (Gov. Code 5 12172.5.) To
determine if there has been any violation of election laws, the Secretary of State may examine
ballots, vote-counting computer programs, "and any other records of elections officials." (Ibid.)
If the Secretary of State finds that any election laws are not being enforced, he or she "shall call
the violation to the attention of the district attorney of the county or to the Attorney General."
(Ibid.)
With respect to the determination of candidate eligibility, the Secretary of State is
responsible for: (1) filing nomination documents received from the county elections officials
(Elections Code 55 8070, 8082); and (2) transmitting to each county elections official a certified
list of candidates eligible for the direct primary. (Elec. Code Ej 8120.)
Barnett claims that Secretary of State Bowen breached her fiduciary duties, but fails to
allege any facts showing a breach of such duties. (Compl. 77 55-56.) To the contrary, Bowen
fully executed her obligation to enforce the election laws, by verifying Durn' s candidacy after
Orange County elections officials certified his eligibility. (Req. for Judicial Notice. Exh. A). In a
letter response to Barnett's claims against Dunn's candidacy, the Secretary of State's office
confirmed that Dunn's met the affiliation requirements under Elections Code 5 8001. (Req. for
Judicial Notice, Exh. B, C.) Secretary of State Bowen upheld her statutory duties in ensuring that
Durn 's candidacy complied with election laws. For these reasons, the Court should sustain
Defendants' demurrer.
Bamett also alleges that Bowen defrauded her by allowing Dunn's campaign to proceed,
even though Dunn's voter registration form does not include information on prior registration.
(Compl. 77 55-56.) Bamett, however, provides no facts showing that the Secretary of State
intentionally concealed or misrepresented any facts regarding Dunn's candidacy. nor does she8 --
emorandum of Po ints and Authorities in Su pport of
Dem urrer to Plaintiffs Complaint (34-2010-00077415)
8/9/2019 Barnett v. Dunn et al AG, SOS Demurer Regarding Origninal Complaint