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Post Office Box 1379

Santa Ana. California 92702-1 379

I11 ~ e l e ~ h o n e ' : (714) 834-6298


Facsimile: (714) 834-2359
Attorneys for Neal Kelley, Orange County Registrar of Voters
Exempt From FilBrg Fees Pursuant tu Gov't Code $6103

SUPERIOR COURT OF CALIFORNIA


COUNTY OF SACRAMENTO

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


1
) NOTICE OF DEMZTRRER AND
) DEMURRER BY DEFENDANT NEAL
Plaintiff, ) KELLEY, ORANGE COUNTY
) REGISTRAR OF VOTERS, TO
j PLAINTIFF~SFIRST AME'NDED
) COMPLALNT
)

DAMON JERRELL DUNN, et al.


j (Cal. Code Civ. Proc. 5 430.10)
j DATE: October 25,2010
Defendant. ) TIME: 9:00 a.m.
) DEPT: 54
) JUDGE: The Hon. Shelleyame Chang
)
j Action Filed: May 10,2010
- ) Trial Date: Not yet set

TO ALL. PARTIES AND THEIR ATTORNEYS OF RECORD:


PLEASE TAKE NOTICE THAT on October 25,2010 at 9:00 a.m., in Department 54 of the
1 Superior Court of the State of California, County of Sacramento, located at 720 9Ih Street, Sacramento,
Califo~nia958 14, Defendant Neal Kelley, sued in his official capacity as the Orange County Registrar of
' Voters ("OC Registrar") will, and hereby does, demur 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
This demurrer is brought and filed on the following grounds:

DEMURRER
1. The Complaint, in its entirety, andlor as to each asserted cause 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 OC Registrar is immune from liability pursuant to Government Code
section 815.6 (no mandatory duty violated);
2. The Complaint, in its entirety, andlor as to each asserted cause of action fails to allege
facts sufficient to state any cause of action against the OC Registrar (CCP section 430.10(e)) because
Plaintiffs exclusive remedy is a Petition for Writ of Mandate pursuant to Elections Code section 133 14
3. The first cause of action to the FAC entitled "Defendant Dunn Maliciously Violated CE(
[California Elections Code] § 2150(a)(l), @), CEC 5 201" fails to allege facts suficient to state any
cause of action against the OC Registrar. (CCP § 430.10(e).) In addition, this cause of action is barred
because it is uncertain, ambiguous and unintelligible. (CCP 5 430.10(f).)
4. The second cause of action to the FAC entitled "Spoliation and Attempted Spoliations oj
Evidence" fails to allege facts sufficient to state any cause of action against the OC Registrar. (CCP 5
430.10(e).) In addition this cause of action barred because it is uncertain, ambiguous and unintelligible
(CCP 8 430.10(f).)
5. The third cause of action to the FAC entitled "Defendants Bowen, Kelley, Dunn Violatel
CEC 5 2150, 6 2153 and 5 2154 and related law" fails to allege facts sufficient to state any cause of
action against the OC Registrar. (CCP 5 430.10(e).)
6. The fourth cause of action to the FAC entitled "Defendants Bowen, Kelley, Dunn, Brow
Act Contrary to Public Policy/Interest" fails to allege facts sufficient to state 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. (CCP 5 430.10(f).)
7. The fifth cause of action to the FAC entitled "Defendants Bowen and Kelley Acted with

Undue Influence in that Defendant Dunn Maliciously Violated CEC 5 2150(a)(l)/(b) with the
NVRAIHAVA and related law" fails to allege facts sufficient to state any cause of action against the 0(

Registrar. (CCP § 430.1 O(e).)

I
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NOTICE OF DEMURRER AND DEMURRER BY
DEFENDANT NEAL K E L L E Y , ~ A N C E O L ?
REGISTRAR OF VOTERS, TO PLAINTIFF'S FLRST AMENDED COMPLAINT
1 8. The sixth cause of action to the FAC entitled "Breach of Fiduciary Duty" fails to allege
1 facts sufficient to state any cause of action against the OC Registrar. (CCP 430.10(e).)
9. The seventh cause of action to the FAC entitled "Unjust Enrichment" fails to allege facts
sufficient to state any cause of action against the OC Registrar. (CCP 5 430.10(e).) Additionally, to the
extent that Plaintiff seeks a monetary award as pled in the seventh cause of action, the FAC fails to
allege compliance with the applicable government claims statutes, which is a condition precedent to the
filing of a complaint seeking damages against a government entity. (CCP 5 430,10(e).)
This Demurrer is based upon this Notice, the concurrently filed Memorandum of Points and
Authorities in Support of Demurrer, any other documentary evidence and argument as may be filed prio
to or at the hearing on the Demurrer, and all papers, files and records in this action.
NOTICE PURSUANT TO LOCAL RULE 2.04
Pursuant to Local Rule 2.04, the court will make a tentative 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 at h~://www.saccourt.ca.~ov.
If you do not have online access, yon may obtain the
tentative ruling over the telephone by calling (916) 874-8142 and a deputy clerk will read the ruling to
you. If you wish to request oral argument, you must contact the courtroom clerk at (916) 874-7858
(Department 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 by 4:00 p.m. on the court day
before the hearing, no hearing will be held.
DATED: August 12,2010 Respectfully submitted,
NICHOLAS S. CHRISOS, COUNTY COUNSEL
and WENDY J. PHILLIPS, SENIOR DEPUTY

Attorneys f i M e a 1 Kelley, Orange County Registrar of


Voters

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NOTICE OF DE-R AND DEMURRER BY DEFENDANT NEAL KELLEY, ORANGE COUNTY
REGISTRAR OF VOTERS, TO PLAINTIFF'S FIRST AMENDED COMPLAINT
PROOF OF SERVICE
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 address is 333 West Santa Ana Boulevard, Suite 407, Santa Ana
Califomia 92702-1379. I am not aparty to the within action.
On August 12,20 10, I served the foregoing NOTICE OF DEMURRER AND DEMURRF,R
BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS, TO
11 PLAlNTIFF'S FIRST AMENDED COMPLAINT on all other varties to this action by. vlacine a true
copy of said document in a sealed envelope in the following mannkr:
-
[XI (BY U.S. MAIL) I placed such envelope(s) addressed as shown below for collection and mailin]
at Santa Ana, Califomia, following our ordinary business practices. I am readily familiar with this
office's practice for collecting and processing correspondence tor mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service in a sealed envelope with postage fully prepaid.

I [XI (BY FACSIMILE) I caused such document to be telefaxed to the addressee(s) and number(s)
shown below, wherein such telefax is transmitted that same day in the ordinary course of business.

[XI (STATE) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

0. a
Anthony Lievanos
c
e v
m

II II Via US Mail Only


NAME AND ADDRESS TO W O M SERVICE WAS MADE
Plaintiff in Pro Per
Pamela Barnett -
2541 Warrego Way
Sacramento, Califomia 95826

II Via Fax & US Mail


Charles H Bell.. Jr ,. Esa..
Attorneys for Defendant Damon Jerrell Dunn

I Brian T Hildreth, Esq.


Bell. Mchdrews. & Hiltachk. LLP
455 capitol ~ a l 1 , ' ~ u i801
te
Sacramento, CA 95814
Fax: 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 Debra
Office of The California Attorney General Bowen, California Secretary of State
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, Califomia 94244-2550
Fax: 916-324-8835

PROOF OF SERVICE
NICHOLAS S. CHRISOS, COUNTY COUNSEL
and WENDY J. PHILLIPS, SENIOR DEPUTY -- State Bar No. 178452
333 West Santa h a Boulevard, Suite 407
Post Office Box 1379
Santa h a , Califomia 92702-1379
Telephone: (714) 834-6298
Facsimile: (714) 834-2359

1 Attorneys for Neal Kelley, Orange County Registrar of Voters


Exempt From Filing Fees Pursuant to Gov't Code j6103

SUPERIOR COURT OF CALIFORNIA


COUNTY OF SACRAMENTO

Case No. 34-2010-00077415


MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
Plaintiff, DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL
KELLEY, ORANGE COUNTY
REGISTRAR OF VOTERS
"TELEPHONE APPEARANCE"
DATE: October 25, 2010
TIME: 9:00 a.m.
DEPT: 54
Defendant. JUDGE: The Hon. Shelleyanne Chang
Action Filed: May 10, 2010
Trial Date: Not yet set

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


COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
Table of Contents

.. ..
Table of Authorltles ...............................................................................................................................
11

1. INTRODUCTION ..................................................................................................................1
2. ARGUMENT .........................................................................................................................
2
A. The OC Registrar's Demurrer Should be Sustained Without Leave
to Amend As the Registrar is Immune From Liability on Any Theory. ...........................2
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 ..............................4
C. The FAC Fails to Allege Facts Sufficient to State a Cause of Action as
to Each of the Individual Causes of Action Stated in the FAC. .......................................5
D. This Demurrer Should Be Sustained as To the Seventh Cause of
Action Because Plaintiff Failed to Exhaust Her Administrative
..
Remedy of Flllng a Govemment Claim ............................................................................
9
E. The First, Second and Fourth Causes of Action are Uncertain ..................................... 10

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

1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFEmANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 Table of Authorities
2 Cases
3 Alliance for a Better Downtown Milbrae v. Wade
(2003) 108 Cal.App.4th 123 ...............................................................................................................
4
4

5 Ankeny v. Lockheed Missiles and Space Center


(1979) 88 Cal.App.3d 531 ................................................................................................................10
6

7 Baines Pickwick Ltd. v. City of Los Angeles


(1999) 72 Cal.App.4th 298 .......................
......................................................................................
9
8

9 Cedar-Sinai Medical Center v.Superior Court


(1998) 18 Cal.4tll 1 ............................................................................................................................. 6
10

11 Chambers v. Ashley
(1939) 33 Cal.App.2d 390 ..................................................................................................................
5
12
d
zw
u0
13 Cooper v. State Farm Mutual Automobile Ins. Co.

$26 14
(2009) 177 Cal.App.4th 876, 892 ...................................................................................................
6, 7

-z
y.
u0
15 Coronado v.Sun Diego Unijied Port Dist.
8,u0
3 (1 964) 227 Cal.App.2d 455 ................................................................................................................
4
16

8 17 Dalton v. East Bay Municipal Utility Dist.


(1993) 18 Cal.App.4th 1566 ...............................................................................................................
9
18

19 Dinosaur Development, Inc. v. White


(1989) 216 Cal.App.3d 1310 ..............................................................................................................8
20

21 Dujardin v. Ventura County General Hospital


(1977) 69 Cal.App.3d 350 ................................................................................................................ 10
22

23 Durell v. Sharp Healthcare


(2010) 183 Cal.App.4tll 1350 ...................................................................................................... 8,9
24

25 Fiol v. Doellstedt
(1996) 50 Cal.App.4th 1318 ............................................................................................................. 11
26

27 Gurrola v. County ofLos Angeles


(1984) 153 Cal.App.3d 145 .............................................................................................................. 10
28
..
11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 Haggis v. City ofLos Angeles
(2000) 22 Cal.4th 490 .........................................................................................................................
2
2

3 Hart v. County ofAlameda


(1999) 76 Cal.App.4th 766 ................................................................................................................9
4

5 Huston v. Anderson
(1904) 145 Cal. 320 ............................
.............................................................................................3
6

7 Krug v. Meeham
(1952) 109 Cal.App.2d 274 .............................................................................................................. 7
8

9 Ley v. Dominguez
(1933) 212 Cal. 587 ......................................................................................................................... 4
10

McBride v. Boughton
(2004) 123 Cal.App.4th 379 ...........................................................................................................8, 9

Melchior v. h'ew Line Productions, Inc.


(2003) 106 Cal.App.4th 779 ...............................................................................................................
8

Oakland Raiders v. National Football League


(2005) 131 Cal.App.4th621 ..............................................................................................................8

Pohlmann v. Patty
(1917) 33 Cal.App. 390 ......................................................................................................................
3

19 Searcy v. Heinet Unijied School Dist.


(1986) 177 Cal.App.3d 792 ................................................................................................................2
20

21 11 Smith v. Minnesota Mutual Life Ins. Co.


23 Stracke v. Farquar
(1942) 20 Cal.2d 82 .......................................................................................................................... 5
24

25 Temple Community Hospital v. Superior Court


(1999) 20 Cal.4th 464 .........................
............................................................................................6
26

27 FVashington v. County ofcontra Costa


(1995) 38 Cal.App.4th 890 .................................................................................................................
2
28
...
111
MEMORANDUM OF POINTS AND AUTHORITIJ%SIN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 Webb v. Saunders
(1947) 79 Cal.App.2d 863 ...........................................................................................................7
2

3 Williams v. Horvath
(1976) 16 Cal.3d 834 9
4

5 W o r v . Superior Court
(2003) 107 Cal.App.4th 25 ..........................................................................................................
8
6

7 Wood v. Riverside General Hospital


(1994) 25 Cal.App.4th 1113 . ...................................... 10
8

9 Statutes
10 California Constitution
Art. 11, Section 2 ............................................................................................................................. 3
Art. 11, Section 2.5 5
_1

%
5 13 California Civil Code
ss
$7g 8
14 Section 1575 ...................................................................................................................................
7

zg 15 California Code of Civil Procedure


g8 16 Section 430.10(f) 10
E
17 California Elections Code
18 Section 2101 ............................................................................................................................ 3
Section 13314(a)(l) ..............................................................................................................4
19 Section 13314(a)(2)(A)-(B) .................................................................................................4

20
21
II California Government Code
Section 815.6 1, 2
Section 905 ....................................................................................................................................9
22 Section 945.4 9

23
I1 California Code of Regulations

24 1 Section 19050.6(e).......................................................................................................................3

25
II Attornev General Opinions

iv
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
Defendant, Neal Kelley, the Orange County Registrar of Voters, by and through his attorneys of
record Nicholas S. Chrisos, County Counsel and Wendy J. Phillips, Senior Deputy, respectfully submib
this Memorandum of Points and Authorities in Support of Demurrer to Plaintiffs First Amended
Complaint.

1. INTRODUCTION
Plaintiff, Pamela Bamett, originally filed a Complaint in this action on May 10, 2010, naming as

Defendants Damon Dunn, the Republican candidate for Secretary of State, Debra Bowen, the incumben
Democratic candidate for Secretary of State and Edmund G. Brown, Attorney General. On July 20,
201 0, Plaintiff filed a First Amended Complaint ("FAC") adding Defendants Neal Kelley, the Orange
County Registrar of Voters ("OC Registrar"), and the U.S. Election Assistance Commission. The OC
Registrar demurs to the FAC on multiple grounds as set forth in the Notice of Demurrer and Demurrer
filed concurrently herewith.
Underlying the FAC are two prevailing allegations: 1) Defendant Dunn 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 OC Registrar because Dunn had failed to complete the "prior
registration" section of the form; and 2) Defendant Dunn was erroneously allowed to declare himself a
candidate for Secretary of State for the Republican primary in June of this year because Plaintiff alleges
Dunn had not been a registered Republican for a sufficient time under the Elections code (this allegation
is dependent on the first allegation that the voter registration form was erroneously accepted). But for
the allegations relating to the election of President Obama, which have no place in this case, all of the
other allegations in the FAC relate back, in some way, to these two primary allegations.
The OC Registrar respectfully requests that this Court sustain this demurrer without leave to
amend. The FAC in its entirety, and each of the causes of action stated therein, fail to allege facts
sufficient to state any cause of action against the OC Registrar for one or more of the following reasons:
(1) the OC Registrar is immune from liability as no mandatory duty has been violated (Cal. Gov. Code 5
815.6); (2) Plaintiffs exclusive remedy is a Petition for Writ of Mandate; and (3) to the extent Plaintiff

11 seeks monetary damages in the seventh cause of action, her failure to allege compliance with the
Government Claims Act is fatal to the cause of action. Additionally, the first, second and fourth causes
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED

II COMPLATNT BY DEFENDANT NEAL KEJLEY, O U Y G E COUNTY REGISTRAR OF VOTERS


I
1 of action in the FAC are uncertain, vague and unintelligible, making them prey to demurrer.
2 2. ARGUMENT
3 A. The OC Registrar's Demurrer Should be Sustained Without Leave
4 to Amend As the Registrar is Immune From Liability on Any Theory.
5 As a general rule, a public entity cannot be liable unless it is alleged to have violated a
6 mandatory duty. The requirement that a complaint against a public entity specifically allege the
7 violation of a statuteiregulation which imposes a mandatory duty has been described as a "'gateway to
8 recovery."' (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896.) To state a cause

9 of action against a governmental entity, "every fact essential to the existence of statutory liability must
10 be pleaded with particularity, including the existence of a statutory duty." (Searcy v. Hemet Unzfied
11 School District (1986) 177 Cal.App.3d 792, 802.) This requirement is born fiom Government Code
12 section 8 1 5.6: "Where a public entity is under a mandatory duty imposed by an enactment that is
-1
8
gw
00
13 designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury
*z
g4 14 of that kind proximately caused by its failure to discharge the duty.. ."

i E5
0".

15 In Haggis v. Ciiy of Los Angeles (2000) 22 Cal.4th 490, the California Supreme Court discussed
8
,u
0
16 the requirement that a plaintiff allege the violation of a mandatory duty before liability can exist against
E
17 a public entity. When considering whether a public entity has a mandatory duty, thus giving rise to
18 liability under Government Code 8 1 5.6, the purpose of the ordinance or law which creates the
19 mandatory duty must be examined closely to determine whether the injury alleged in the lawsuit was of
20 the type which the mandatory duty was intended to prevent. (Haggis, supra, at 503.) Even where a
21 mandatory duty is alleged, the immunity provisions of the Government Code could apply to immunize
22 the public entity from liability. (Id. at 503-504.)
23 Plaintiff has failed to identify any mandatory duty that the OC Registrar owes to Plaintiff that
24 can form the basis for the FAC and the causes of actions stated therein. Plaintiff complains that the OC
25 Registrar erroneously accepted Defendant Dunn's affidavit of registration in March 2009 because Dunn
26 had failed to complete the prior registration portion of the affidavit. Plaintiff also complains that the OC
27 Registrar's subsequent certification of Dunn's eligibility as a Republican candidate for the Secretary of
28 State was premised upon the allegedly erroneous registration. Plaintiffs allegations are based on the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
I faulty premise that the "prior registration" section of the voter registration form, if not completed,

2
II disqualifies a person from registering to vote; this is simply not the case.
I
4
To qualify to register to vote, a person must be a citizen of the United States, a resident of

California, "not in prison or on parole of the conviction of a felony and at least 18 years of age at the
I
5 time of the next election." (Cal. Elec. Code 5 2101; accord, Cal. Const. art. LI, sec. 2.) If a person
6
7
I completes a voter registration affidavit attesting to these minimum basic factors, which entitle him to

register to vote, the local elections official has no grounds to deny the registration. (See generally
I
8 Huston v. Anderson (1904) 145 Cal. 320,324 (holding that intbrmality or irregularity in the method by
9
I which a person was registered to vote is insufficient grounds to disqualify the person from voting so
I
10
II long as the person was qualified to vote and the local elections official in fact registered the person to
11
12
II vote); accord Pohlmann v. Patty (1 91 7 ) 33 Cal.App. 390.)
The voter registration affidavit completed by Dunn was silent on the issue of prior registration.
I
2
3
zw 13
U0
No provision of the Elections Code places a duty upon the OC Registrar to obtain prior registration
35 14 information when left blank by a person completing an affidavit for registration. In fact, Title 2 of the
0
U0
".
0

w r 15 California Code of Regulations, section 19050.6 establishes presumptions the registrar is to apply if
E ::
dS
II
. 16 information is missing from a voter registration form. With regard to prior registrations the regulations
28
2>
I
O 17
I provide "If no prior registration is shown, it shall be presumed that the person is not registered to vote in
18
19
II California." (2 C.C.R. 3 19050.6(e).) "An elector's affidavit of registration as a voter shall be valid
notwithstanding the failure to complete the information to which the above presumptions apply, absent
I
20 evidence rebutting the presumption." in bid.)'

22
The OC Registrar asserts that his duty is to confirm that the affidavit contains the necessary
information to qualify the person to vote. (See Cal. Elec. Code 2101 .) If these factors appear on the
I
23 face of the affidavit the Registrar cannot reject the affidavit andlor refuse to register the person as a

'The Attorney General has o ined that to the extent the presumption in the Code of Regulations
2 CCR § 19050.6, are in conflict witi! the Elections Code the presumptions in the regulation should not
apply. (67 0ps.Cal.Atty.Gen. 446 (1984).) However, the Attorney General's opinion is merely
persuasive authority. The OC Registrar asserts that because the Elections Code is silent on any
presumption that may apply when the prior registration section of the voter affidavit is left blank, the
presumption in 2 C.C.R. $ 19050.6(e) controls and is not in conflict with the Elections Code.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 voter. As a ministerial officer, the OC Registrar has no authority to go beyond the facts presented on th
2 forms presented to the office. (See generally Alliancefor a Better Downtown Milbrae v. Wade (2003)
3 108 Cal.App.4th 123.) A registration form, which is normal on its face, like the one executed by Dunn
4 was, must be accepted by the Registrar. As a matter of public policy the registration "rules should be
5 construed to permit the greatest number of qualified voters to exercise their rights." (Coronado v. San
6 Diego UnrJied Port Dist. (1964) 227 Cal.App.2d 455, 468, citing Ley v. Dominguez (1933) 212 Cal.
7 587.) Moreover,
8 Here, the OC Registrar properly performed his duty and properly applied the presumption
9 established by the Code of Regulations when he accepted the affidavit of registration completed by
10 Dunn. Because the Plaintiff has failed to identify a duty owed to Plaintiff by the OC Registrar, and
11 because the facts before the Court demonstrate that the OC Registrar complied with his statutory and
12 regulatory duties in registering Dunn, this demurrer should be sustained.
I
O W
13 B. Plaintiff's Exclusive Remedy to Challenge Dunn's Candidacy Was and
14 Is a Petition for Writ of Mandate As Allowed by the Elections Code.
30
g8
!if.
2e
" Any elector who claims that an error or omission has "occurred, or is about to occur, in the
16 placing of a name on ... a ballot" is entitled to file a Petition for Writ of Mandate to challenge the error
g 17 or omission. (Cal. Elec. Code 5 13314(a)(1).) A peremptory writ shall not issue unless there is proof
18 that the "error, omission, or neglect is in violation of this code or the Constitution," and "the writ will
19 not substantially interfere with the conduct of the election." (Cal. Elec. Code 5 13314(a)(2)(A)-(B).)
20 Plaintiff is claiming that Defendant Dunn was not qualified to be a candidate for Secretary of State on
21 the Republican primary ballot in June and that Dunn should not be allowed to appear on the November
22 general election ballot as the Republican nominee for Secretary of State, notwithstanding the fact that
23 Dunn won the Republican primary. Plaintiffs claims are precisely the kind that are required to be

24 addressed via a Petition for Writ of Mandate under Elections Code section 13314 before the name
25 appears on the ballot and before voters exercise their right to vote. Plaintiffs delay in seeking the relief

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

27 election.

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MEMORANDUM OF POINTS AND AUTHORITlES IN SUPPORT OF DEiMURRER TO FIRST AMENDED
COMPLAUiT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 Moreover, the relief that Plaintiff seeks would disenfranchise the more than 1.4 million voters

statewide who cast their vote for Dunn. "A voter 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 Court were to grant the relief sought by Plaintiff, the primary election that has already passed will
be substantially interfered with because it would completely undo the Republican primary as it relates tc
the office of the Secretary of State. Courts have properly denied as untimely actions to omit names fron
the ballot once the election has begun or even ended. (See Stracke v. Farquar (1942) 20 Cal.2d 82; see
also Chambers v. Ashley (1939) 33 Cal.App.2d 390,391 (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 Plaintiff recognized that her late filing of this lawsuit would have been a bar to relief
under the Elections 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 cognizable claim for relief against the OC Registrar. Moreover, Plaintiff cannot be allowed
to circumvent the legislatively established remedy of a Petition for Writ of Mandate for electors who
claim there is an error on a ballot. This demurrer should be sustained because Plaintiff failed to pursue
her statutorily established remedy of a Petition for Writ of Mandate. This Court cannot and should not
condone Plaintiffs' failure to timely seek relief under the Elections Code and potentially disenfranchise
the more than 1.4 million voters who cast their vote for Dunn.
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 action in the FAC. This Demurrer should be sustained
as the FAC does not contain sufficient facts to support any of the alleged causes of action. A "cause of
action arises out of an antecedent primary right and corresponding duty and the delict or breach of such
primary right and duty by the person on whom the duty rests." (Smith v. Minnesota Mutual Life Ins Co.
(1948) 86 Cal.App.2d 581, 590.) Unless Plaintiffs FAC alleges the violation of some primary right
which the OC Registrar had a corresponding duty to perform for the benefit of Plaintiff, then the FAC
fails to state a cause of action against the OC Registrar and this demurrer should be sustained.

II -5-
MEMORANDUM OF POINTS AND AUTHORITIES JN SUPPORT OF DE-R TO FJRST AMENDED 1
II COMPLAINT BY DEFENDANT NEAL KBLLEY, ORANGE COUNTY REGISTRAR OF VOTERS
I
1 Plaintiffs first cause of action alleges "Defendant Dunn Maliciously Violated CEC [California
2 Elections Code] 5 2150(a)(l), (b), CEC 5 201." Plaintiff does not specifically identify the OC Registrar
3 as a Defendant against whom this cause of action is alleged. However, in paragraph 41 of the FAC,
4 which is under the first cause of action, Plaintiff makes an allegation against the OC Registrar, stating
5 that "Plaintiff.. . suffered irreparable harm when Defendant Dunn was allowed by ... Kelley to
6 participate in the Republican Party primary as a Republican Party elector." (FAC 7 41.) This single
7 allegation against the OC Registrar fails to allege a cause of action for malicious violation of the
8
II elections code. Quite frankly, there is no cause of action stated because Plaintiff has no rights under
I
9
I sections 21 50 and 201 as it pertains to Dunn's registration to vote and declaration of candidacy, and the
10
II OC Registrar owes no duty to Plaintiff arising fiom these statutes. Even if the OC Registrar's
acceptance of Dunn's voter registration form was improper (which the OC Registrar asserts it was not)
I
that fact does not give Plaintiff a cause of action.
The second cause of action for "Spoliation of 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-
Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, Temple Community Hospital v. Superior
Court (1 999) 20 Cal.4th 464.) Courts have recognized a possible cause of action for spoliation of
evidence where facts supporting the contract principle of "action in reliance" or the tort theory of
"assumption of duty" are present. (Cooper v. State Farm Mutual Automobile Ins. Co. (2009) 177 Cal.
App.4th 876, 892.) However, Plaintiffs FAC fails to allege any facts supporting a cause of action for
20
21
I spoliation of evidence. According to Plaintiff, the OC Registrar spoiled evidence by "certifying" the
registration form in a manner that "covered up the affirmation section" of the form (FAC 7 48);
1
22 "concealed evidence" that Dunn's registration form was not properly executed (FAC 7 5 1); "concealed a
23 // crime" by transferring the employee who certified Dunn's registration form to a different area of the
I
24
II Registrar's office (FAC 7 52); and other inapposite claims. A crucial element to any spoliation of
evidence cause of action is the actual destmction or loss of evidence. Plaintiff fails to make any such
I
allegation because no evidence has been destroyed or lost. In fact the OC Registrar retains a copy of a
27

28
I Durn's voter registration form as required by law. Moreover, Plaintiff has not alleged any facts

supporting "action in reliance" or "assumption of duty," which are the only grounds upon which a
I
-6-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 spoliation cause of action may be viable. (Cooper, supra, at 892.)
2 Plaintiffs third cause of action is entitled "Defendants ... Kelley .. . Violated CEC 5 21 50, 5
3 2153, and 5 2154." Like the first cause of action, this cause of action fails to state a claim upon which
4 relief can be granted because Plaintiff has no rights arising from these statutes nor does the OC Registrar
5
I owe a duty to Plaintiff as a result of the statutes as they pertain to Durn's voter registration.
I
11 Plaintiffs fourth cause of action alleges that the OC Registrar acted "contrary to public
I
7
II policylinterest." Just like the other causes of action there are no facts supporting this cause of action tha
8
9
I give rise to a duty that the OC Registrar violated which was owed to Plaintiff that might give rise to a
remedy. A blanket allegation that he OC Registrar failed in his "ministerial duties" (FAC 7 81) without
10 specific allegations of what ministerial duties the OC Registrar failed to perform and why there was a
11
I duty of performance owed to Plaintiff means this cause of action also fails to state a claim upon which
relief can granted
Plaintiffs fifth cause of action is for undue influence.
Undue influence [is] that k i d of influence or supremacy of one mind over
another by which that other is prevented from acting according to his own wish or
judgment, and whereby the will of the person is overborne and he is induced to do
or forbear to do an act which he would not do, or would do, if left to act freely.

(Webb v. Saunders (1947) 79 Cal.App.2d 863, 871.) Similarly, undue 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 a
real or apparent authority over him, of such confidence or authority for the
purpose of obtaining an unfair advantage over hi;2. In taking an unfair
advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and
unfair advantage of another's necessities or distress.
(Civ. Code 5 1575; Krugv. Meeham (1952) 109 Cal.App.2d 274,276.) Given these definitions of
23
II undue influence it is clear that Plaintiff has failed to state a cause of action. She has alleged no facts
I
24
II demonstrating a relationship between herself and the OC Registrar that would give rise to the OC
I
25
II Registrar exercising undue influence over Plaintiff to obtain an unfair advantage.
I
26 II Plaintiffs sixth cause of action is for breach of fiduciary duty. There are some basic principles

27
II of the law of fiduciary duty.
I
-7-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
"[A] fiduciary relationship is a recognized legal relationship such as guardian and
ward, trustee and beneficiary, ... [citation]." [Citation omitted.] A fiduciary must
give "priority to the best interest of the beneficiary. [Citation.]" [Citation
omitted.] In addition ... the fiduciary also is required to manage the subject
matter 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 the
beneficiary's interest in the res. [Citation omitted.]

5
II (OaklandRaiders v. National Football League (2005) 131 Cal.App.4th 621,632; accord Wolfv.

6
I Superior Court (2003) 107 Cal.App.4th 25.) In the absence of evidence of a fiduciary relationship,
7
II either as a matter of law or by the actions of the parties, there can be no cause of action for breach of

8
II fiduciary duty. (Raiders, supra, at 642.) Here Plaintiff has failed to allege the existence of any fiduciar

10
I relationship between herself and the OC Registrar. She cannot allege such facts because there is no suc

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

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

Plaintiffs 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.

"There are several potential bases for a cause of action seeking restitution. For
example, restitution may be awarded in lieu of breach of contract damages when
the parties had an express contract, but it was procured by fraud or is
unenforceable or ineffective for some reason. [Citations.] Alternatively,
restitution may be awarded where the defendant obtained a benefit from the
plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the
plaintiff 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 will
imply a contract (or rather, a quasi-contract), without regard to the parties' intent,
in order to avoid unjust enrichment."

(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 he
or she is unjustly enriched at the expense of another. [Citations.] A person is
enriched 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 to
make restitution only if the circumstances are such that, as between the two
individuals, it is unjust for the person to retain it. [Citation.]' "
- 8-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 (Durell supra, at 1370, quoting McBride, supra, at 389.) In the instant case, Plaintiff has not and
2 cannot allege the necessary elements to establish a cause of action for unjust enrichment or restitution.

3 The OC Registrar did not receive any monetary or other tangible benefit from Plaintiff or anyone else
4 when he performed his ministerial duty and accepted the voter registration form completed by
5 Defendant Dunn in March 2009. Similarly, the OC Registrar received no benefit of any kind from
6 Plaintiff or otherwise for performing his ministerial duty of certifying Dunn's declaration of candidacy
7 in March 20 10 with regard to the facts that Dunn had been affiliated with the California Republican
8 Party for at least three months and was not affiliated with any other political party for twelve months
9 prior to declaring his candidacy for Secretary of State. Without any allegation that the OC Registrar
10 received a monetary or other tangible benefit at the expense or to the determinant of Plaintiff, there can
11 be no cause of action for restitution or unjust enrichment; this demurrer should be sustained.

_1
12 D. This Demurrer Should Be Sustained as To the Seventh Cause of

0W
13 Action Because Plaintiff Failed to Exhaust Her Administrative
00

$3". 14
0
u0
Remedy of Filing a Government Claim.

9rC l 5 Under the California Government Claims Act, an essential element of a cause of action for
-5
80
,u 16 damages against a public entity, or its employees, is an allegation that the Plaintiff exhausted her
2
5 17 administrative remedies by filing a claim for damages with the Board of Supervisors. Government Cod,
18 section 905 requires an allegedly injured person to present all claims asserted against local public
19 entities in accordance with the provisions of Government Code section 910, et. seq. Government Code
20 section 945.4 provides that no suit for money or damages may be maintained against a public entity

21 unless the Plaintiff has first presented the local entity with a written claim for such damages. A suit for
22 "money or damages," includes all actions where the Plaintiff is seeking monetary relief, regardless of

23 whether the action is founded in "tort, contract, or some other theory." (Hart v. County ofAlan7eda
24 (1999) 76 Cal.App.4th 766,778, quoting Baines Pickwick Ltd v. City ofLos Angeles (1999) 72
25 Cal.App.4th 298,307.) Taken together, these statutes required Plaintiff to file a claim for damages,

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

27 16 Cal.3d 834, 838; Dalton v. East Bay Municipal Utilify Dist. (1993) 18 Cal.App.4th 1566, 1571.)

-9-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED
COMPLAINT BY DEFENDANT NJCAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
1 Moreover, in order to state a cause of action, Plaintiff must plead both timely compliance with
2 these claim presentation requirements and denial of the claim by the governmental agency. (Gurrola v.
3 County O ~ L OAngeles
S (1984) 153 Cal.App.3d 145, 153.) Failure to include the necessary allegations i~
4 the Complaint subjects it to attack by general demurrer. (Dujardin v. Ventura County General Hospitai
5 (1977) 69 Cal.App.3d 350,355; Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 11 13,
6 1119.)
7 In her Seventh Cause of Action for Unjust Enrichment, Plaintiff seeks an undeclared amount of
8 money as damages. (FAC 7 137.) However, nowhere in the FAC does Plaintiff allege compliance wit1
9 the Government Claims Act. Plaintiffs failure to make this allegation in her FAC is fatal and the
10 Demurrer should be sustained as to the Seventh Cause of Action.
11 E. The First, Second and Fourth Causes of Action are Uncertain.
12 Code of Civil Procedure section 430.10(f) provides that a proper basis for a denlurrer is where
_1

2
4 13 the complaint is "uncertain." "As used in this subdivision, 'uncertain' includes ambiguous and
s8
I4 unintelligible." (Ibid.) Case law has held that such defects are grounds f o r .
8%
15 (Ankeny v LockheedMissiles andspace Center (1979) 88 Cal.App.3d 53 1,537.) Although the entire
z:$ 16 FAC may be subject the claim of uncertainty, the first, second and fourth causes of action are
2
17 particularly uncertain. In the heading of the first cause of action Plaintiff indicates it is against
18 Defendant Dunn, only. But then, in the body of the cause of action, there are a couple of allegations
19 against the OC Registrar. This makes it entirely unclear as to whether this cause of action is even
20 alleged against the Registrar. The second cause of action for spoliation of evidence contains allegations
21 of concealing evidence and unusual allegations that a crime was concealed when the employee who
22 certified Dunn's registration form was transferred. These allegations are so vague and unintelligible tha
23 it is difficult to know how to respond or how they relate to a cause of action for spoliation. Finally, the
24 fourth cause of action suffers from the same problems. Throughout this cause of action, Plaintiff makes
25 random assertions regarding the election of President Obama and Defendants' alleged failures to
26 perform duties in relation to confirming President Obama's citizenship before he was declared the

27 presidential nominee from California. These allegations are non-sequitors and have no relation

28 whatsoever to the remainder of the FAC; they render the fourth cause of action uncertain, vague and
- lo -
MEMORANDUM OF POINTS AND AUTHORlTIES IN SUPPORT OF DEMURRER TO FJRST AMENDED
COMPLAINT BY DEPENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS
PROOF OF SERVICE
2 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 address is 333 West Santa Ana Boulevard, Suite 407, Santa Ana
3 California 92702-1379. I am not a party to the within action.
4 On August 12,2010, I served the foregoing MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED COMPLAINT BY
5 DEPENDANT NEAL KELLEY, ORANGE COUNTY REGISTRAR OF VOTERS on all other
parties to this action by placing a true copy of said document in a sealed envelope in the following
6 manner:

[XI (BY U.S. MAIL) I placed such envelope(s) addressed as shown below for collection and mailir
at Santa Ana, California, following our ordinary business practices. I am readily familiar with this
office's practice for collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service in a sealed envelope with postage fully prepaid.

[XI (BY FACSIMILE) I caused such document to be telefaxed to the addressee(s) and number(s)
shown below, wherein such telefax is transmitted that same day in the ordinary course of business.

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

.
Anthony Lievanos
ZL~,,
NAME AND ADDRESS TO WHOM SERVICE WAS MADE
Via US Mail Only Plaintiff in Pro Per
Pamela Barnett
2541 Warrego Way
Sacramento, California 95826
Via Pax & US Mail Attorneys for Defendant Damon Jerrell Dunn
Charles H Bell, Jr ,Esq.
Brian T Hildreth, Esq.
Bell, McAndrews, & Hiltachk, LLP
455 Capitol Mall, Suite 801
Sacramento, CA 95814
Fax: 916-442-7759
Via Fax & US Mail Attorneys for Defendants Edlnund G. Brown,
Anthony P. O'Brien, Deputy Attorney General Jr., California Attorney General and Debra
Office of The California Attorney General Bowen, California Secretary of State
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, California 94244-2550
Pax: 916-324-8835

PROOF OF SERVICE