Motion On The Pleadings

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER

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Defendants.

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Charles H Bell, Jr. (SBN 060553) Brian T. Hildreth (SBN 213141)

BELL, McANDREWS, & HILT ACHK, LLP 455 Capitol Mal1, Suite 801

Sacramento, California 95814

Telephone: (916) 442-7757

Facsimile: (916) 442-7759

Case No. 30-2010-00381664

NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO

CCP §438

DATE: February 28,2011 TIME: 2:00 p.m.

DEPT.: C33

JUDGE: Hon Geoffrey T. Glass

Contest Filed: June 17,2010

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Attorneys for Defendant, DAMON DUNN

Notice of Motion and Motion for Judgment on the Pleadings

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DR. ORL Y T AITZ, ESQ,

Contestant,

v.

DAMON DUNN and DOES 1 through 18,


TO CONTESTANT, ORL Y TAITZ, IN PRO PERSONA:

2 PLEASE TAKE NOTICE that on February 28, 2011 at 2:00 p.m., or as soon thereafter as

3 this matter may be heard in Department 33 of the above entitled Court, Defendant, DAMON

4 DUNN will and does hereby move this Court for Judgment on the Pleadings, as to Contestant's

5 Complaint and each cause of action therein, without leave to amend the Complaint, pursuant to

6 California Code of Civil Procedure section 438.

7 This Motion will be made on the ground that this Court is without jurisdiction to hear

8 Contestant's action because, on its face, the action is now moot by reason of the events which

9 have occurred since the filing of the present action. In short, though Defendant Dunn was

10 successful at the Statewide Direct Primary Election on June 8, 2010 in obtaining the Republican

11 nomination for the office of Cali forni a Secretary of State, Defendant Dunn was unsuccessful at

12 the November 2, 2010 General Election. The essence of the relief sought by Contestant is a court

13 decree ordering her name to replace Defendant Dunn's as the Republican nominee for Secretary

14 of State for the November 2010 Statewide General Election. The November 2010 General

15 Election now over, this Court is without jurisdiction to grant the relief sought by Contestant.

16 Even the declaratory and inj unctive relief sought is now moot by reason of the occurrence of the

17 November 20 I 0 General Election.

18 Furthermore, this Court is without jurisdiction to hear this matter because Contestant has

19 failed to comply with numerous statutory requirements and procedures for election contests set

20 forth in Elections Code section 16000, et seq. In short, Contestant's Election Contest is untimely,

21 and barred by Elections Code § 1640 I, which requires elections contests to be filed "after the

22 declaration of the result of the election .... " (Emphasis added.) Contestant filed her Contest

23 before the results were certified. Contestant also failed to verify her Election Contest, and failed

24 to make required references to relevant Elections Code provisions. Contestant also seeks

25 declaratory and injunctive relief, neither of which is permitted by the Elections Code for election

26 contests.

27 Finally, the present Motion is made on the ground that Contestant's Election Contest fails

28 to state facts sufficient to constitute a cause of action against Defendant, because Defendant Dunn

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in fact was a duly qualified candidate for Secretary of State at the 2010 Primary and General Elections. Defendant Dunn complied with all requirements under the Elections Code to seek

statewide elective office in California. Contestant's claims for criminal fraud also are

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unmeritorious in the present civil matter as Defendant Dunn was a duly qualified candidate for

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the office of Secretary of State. Contestant also makes allegations which are not properly brought

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under the Elections Code in an action challenging a primary election.

This Motion is based on the Notice of Motion, on the attached Memorandum of Points

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and Authorities, Defendant's Request for Judicial Notice and on the pleadings and records on file

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herein and, if argument is permitted by the Court, upon such oral and other documentary evidence

as may be presented at the hearing of the motion.

Dated: January 'df ,2011 BELL, McANDREWS, & HILTACHK, LLP

By:6_~(~

CHARLESH~ BRIAN T. HILDRETH


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Defendants.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ORANGE CENTRAL JUSTICE CENTER

Case No. 30-2010-00381664 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO

CCP § 438

DATE: February 28, 2011 TIME: 2:00 p.m.

DEPT.: C33


Contest Filed: June 17,2010

. ,

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BELL, McANDREWS, & H1L TACHK, LLP 455 Capitol Mall, Suite 801


Telephone: (916) 442-7757

Facsimile: (916) 442-7759

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DR. ORL Y TAITZ, ESQ,

Contestant,

v.


Defendant Damon Dunn's Motion for Judgment on the Pleadings

5

, 1

TABLE OF CONTENTS

2 INTRODUCTION 1

3 FACTUAL BACKGROUND 1

4 ARGU"MENT 3

I.

A MOTION FOR ruDGMENT ON THE PLEADINGS IS

APPROPRIATE IN THE PRESENT MATTER 3

THE COURT IS WITHOUT JURISDICTION TO HEAR

CONTESTANT'S ELECTION CONTEST AND CAUSES OF

ACTION ONE THROUGH EIGHT THEREIN 4

6 7 8

II.

A.

The Court is Without Jurisdiction over Contestant's Election Contest And Each Cause of Action therein Because Contestant's Action is Moot as Defendant Dunn is No Longer the Republican

Nominee for the Office of California Secretary of State .4

9 10 II 12 13 14 15 16

B.

The Court Also is Without Jurisdiction over Contestant's Action And Each Cause of Action Therein Because Contestant

Failed to Adhere to the Statutory Requirements for Election Contests 9

III.

CONTESTANT'S ELECTION CONTEST AND EACH CAUSE

OF ACTION THEREIN FAILS TO STATE A CAUSE OF ACTION FOR WHICH RELIEF MAY BE GRANTED BECAUSE DEFENDANT DUNN COMPLIED WITH HIS RESPONSIBILITIES TO APPEAR ON

THE BALLOT 10

A.

Contestant's First and Fourth Causes of Action Fail to State a Claim Upon Which Relief May Be Granted Because Defendant Dunn Satisfied the State's Eligibility Requirements to Seek

Elective Office as a Republican Candidate for Secretary of State l 0

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18 19 20 21 22 23 24

B.

Contestant's Second, Fourth and Seventh Causes of Action Fail to State a Claim Upon Which Relief May Be Granted Because Defendant Dunn's Prior Voter Registration Disclosure Also Was

Statutorily Sufficient and Did Not Disqualify his Candidacy 12

Contestant's Third Cause of Action Fails to State a Claim Upon

Which Relief May Be Granted Because Defendant Dunn Submitted

A Sufficient Number of Signatures to Seek Statewide Office 14

c.

D.

Contestant's Fifth, Sixth, and Eighth Causes of Action Fail to State a Claim Upon Which Relief May Be Granted Because

None Are Proper Subject Matter for an Election Contest 14

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E.

Contestant Taitz's Election Contest also Fails to State a Cause of Action Upon Which Relief May Be Granted Because the

Matter is Moot. : , 15

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27 CONCLUSION 15

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2

. ,

TABLE OF AUTHORITIES

Page(s)

STATE CASES

3

Canales v. City of Alviso

(1970) 3 Cal.3d 118 ~ 7

4 5

Carlson v. Burt

(1896) 111 Cal. 129 7

6

7

Carlson v. Eassa

(1997) 54 Cal.App.4th 684, 62 Cal.Rptr.2d 884 9

8

City of Fresno v. California Highway Com.

(1981) 118 Ca1.App.3d 687 · 10

9

Cloud v. Northrop Grumman Corp.

(1998) 67 CaI.AppAth 995 3

Donald v. Cafe Royale, Inc.

(1990) 218 Cal.App.3d 168 · 7

Filarsky v. Superior Court

(2002) 28 Cal.4th 419 10

Guglilmi v. Spelling-Goldberg Productions

(1979) 25 Cal.3d 860 10

Housing Group v. United Nat 'I Ins. Co.

(2001).90 Cal.App.4th 1106 6

Kilbourne v. City a/Carpinteria

(1976) 56 Cal.App.3d 11 6

Lawrence v. Bank ofAmerica

(1985) 163 CaI.App.3d431 1

McKinney v. Superior Court of San Diego

(2004) 124 Cal.App.4th 951 6

Paoli v. California & Hawaiian Sugar Refining Corp.

(1956) 140 Cal.App.2d 854 6

Paul v. Milk Depots, Inc.

(1964) 62 Cal.2d 129 7

Pittenger v. Home Savings & Loan Assn.

(1958) 166 Cal.App.2d 32 7

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3

4 5

6 7 8

9 10

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Rideout v. The City of Los Angeles

(1921) 185 Cal. 426 7

Rolfe v. California Trans. Comm 'n

(2002) 104 Ca1.AppAth 239 3

Salazar v. Eastin

(1995) 9 Ca1.4th 836 6

SlOOpS v. Abbassi

(2002) 100 Ca1.AppAth 644 3

Wozniak v. Lucutz

(2002) 102 Ca1.AppAth 1031 10

STATm'ES

California Code of Civil Procedure

§ 438 3,9, 15

California Elections Code

§2101 13

§ 2150 13

§ 2153 13

§ 2154 13

§ 5100 12

§8001 11,12

§ 8062 14

§§ 16000, et seq 10

§ 16]01 8,14,15

§ 16800 1

§ 16803 : 1

§ 18001 8

§ 18203 8

§ 18500 8

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§ 1850 1 8

§ 18502 8

Florida Stat.

§ 98.065(4)(c) , 2

IV


, ,

INTRODUCTION

2 Election Contestant Orly Taitz, who was a candidate for the Republican nomination for

3 the office of Secretary of State at the June 8, 2010 Statewide Primary Election, has filed the

4 present "Election Contest" (as identified on her civil case cover sheet and pleading caption)

5 against her opponent at the June 2010 election, Defendant Damon Dunn. Dunn received a

6 substantial majority of the votes cast by Republican voters and was certified as the nominee of the

7 Republican Party and in fact ran as that nominee at the November 2010 Statewide General

8 Election. Contestant seeks a court decree rendering the Primary Election of June 8, 2010 null and

9 void as to the Republican contest for Secretary of State. (See Complaint, pg. 6, and ,r 12 thereon.)

10 Contestant also seeks monetary damages.

11 Among other defects present in her action, Contestant failed to seek (and did not obtain) a

12 timely resolution of her Complaint prior to the November 2010 Statewide General Election.

13 Contestant's case is thus now moot on the grounds that the purported controversy alleged by

14 Contestant no longer exists. The Court also is without jurisdiction to hear the matter because

15 Contestant failed to comply with numerous procedural requirements for filing an Election

16 Contest. Contestant's action also does not state facts sufficient to constitute a cause of action

17 against Defendant Dunn because Defendant in fact complied with all required provisions of the

18 Elections Code to seek the statewide office of Secretary of State at the 2010 Statewide Primary

19 and General Elections.

20 As a result ofthe foregoing, this Court should grant Defendant's Motion for Judgment on

21 the Pleadings without leave to amend. 1

22 FACTUAL BACKGROUND

23 Damon Dunn was the Republican candidate for California Secretary of State. (Election

24 Contest, Exh.6.) In 1999, Dunn registered to vote in Florida and stated his affiliation with the

25 Democratic Party. (Election Contest, Exh. 3.) Under Florida law, a resident is placed on the

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.1 Where the defect in the challenged pleadings cannot be cured, a motion should be granted without leave to amend. "Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear but no liability exists under substantive law." (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431,436.)

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inactive voter list when he or she does not respond to a mailed address confirmation sent by the

2 county supervisor of elections. (Fla. Stat. § 98.065(4)(c).) The voter is then removed from the

3 statewide voter registration rolls if he or she does not vote for two consecutive federal elections,

4 and fails to update his or her voter registration information. (Jd.)

5 In March 2002, the Duval County, Florida Supervisor of Elections converted Dunn's

6 voting status to inactive because Dunn did not have any voting history, and did not respond to

7 mail sent to his Jacksonville residence. (Election Contest, Exh. 12.) Dunn had no further activity

8 on his Florida voting record. On June 6, 2005, the Duval County Elections Supervisor converted

9 Dunn to an ineligible voter in Florida, thus requiring Dunn to re-register ifbe wanted to vote in

10 Florida. (Election Contest, Exh. 12.)

11 Some four years later, on March 13,2009, Dunn registered to vote in California and stated

12 his affiliation with the Republican Party. (Election Contest, Exh. 1.) Thereafter, on March 10,

13 2010, Dunn declared his candidacy for the Republican nomination for California Secretary of

14 State. (Election Contest, Exh. 6.) As part of his Declaration of Candidacy, the Orange County,

15 California Registrar of Voters certified that Dunn:

16 (I) had been affiliated with the California Republican Party for at least three months

17 before filing his declaration for candidacy; and

18 (2) was not affiliated with any other political party for twelve months before declaring his

19 candidacy.

20 (Defendant's Request for Judicial Notice ("RJN") ~ 1, and Exh. E thereto.)

21 On March 30,2010, Jerry Holland, Supervisor of Elections for Duval County, Florida,

22 issued a letter to the California Secretary of State's office stating that Dunn had become ineligible

23 to vote in Florida in June 2005, due to his inactivity and lack of response to mailings from the

24 Office of the Supervisor of Elections. (Election Contest, Exh. 12.)

25 On May 12,2010, the Secretary of State's Office responded to a complaint filed by

26 another individual making similar allegations Contestant bas made herein regarding Dunn's

27 eligibility. (RJN '12, and Exh. F thereto.) In the letter the Secretary of State's Office noted that

28 Defendant Dunn's registration as a Democrat in Florida expired in June 2005, and that he was not

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affiliated with any party when he registered to vote in California in March 2009. (Jd.)

2 The results of the June 8, 2010 Statewide Direct Primary Election were certified by the

3 Secretary of State on July 18,2010. (RJN, ~ 3, and Exh. G thereto.) Defendant Dunn was

4 certified as the Republican nominee. In addition, the November 2010 General Election for the

5 office of Secretary of State also has been certified. (RJN, ~ 4, and Exh. H thereto.) The General

6 Election occurred on November 2, 2010. Results of the General Election were formally certified

7 on January 6, 2011. (Id.) Defendant Dunn was unsuccessful in his bid for Secretary of State, and

8 was defeated by the incumbent Secretary of State, Debra Bowen. (Jd.)

9 ARGUMENT

A MOTION FOR JUDGMENT ON THE PLEADINGS IS APPROPRIATE IN THE PRESENT MATTER.

Code of Civil Procedure section 438, states in relevant part that a defendant may bring a

Motion for Judgment on the Pleadings on one of the following grounds:

(c)(8)(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(c)(8)(ii) The complaint does not state facts sufficient to constitute a cause of action against the defendant.

A motion for judgment on the pleadings has the same function as a general demurrer but

is made after the time for demurrer has expired. (Cloud v. Northrop Grumman Corp. (1998) 67

Cal.AppAth 995, 999.) Except as provided by statute (Code of Civil Procedure § 438), the rules

governing demurrers apply. (Jd.) The grounds for a motion for judgment on the pleadings may: (a) appear on the face of the challenged complaint; or (b) be based on facts of which the court may take judicial notice. (Rolfe v. California Trans. Comm 'n (2002) 104 Cal.AppAth 239, 242

(articulating basic standard).) A Motion for Judgment on the Pleadings may be made at any time

either prior to the trial or at the trial itself. (Stoops v. Abbassi (2002) 100 Cal.AppAth 644, 650.)

In the present matter, Defendant moves for judgment on the pleadings under both grounds

set forth in Section 438, and moves specifically against each separate cause of action maintained

in Contestant's action, and the action as a whole.

III

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THE COURT IS WITHOUT JURISDICTION TO HEAR CONTESTANT'S ELECTION CONTEST AND CAUSES OF ACTION ONE THROUGH EIGHT THEREIN.

The Court is Without Jurisdiction over Contestant's Election Contest And Each Cause of Action therein Because Contestant's Action is Moot as Defendant Dunn is No Longer the Republican Nominee for the Office of California Secretary of State.

First and foremost, despite her apparent claims otherwise, Contestant's action is an

A.

election contest. Her action is captioned specifically as an "Election Contest." Contestant's civil

case cover sheet also designates the action as an "Election Contest." Moreover, each cause of

action in Contestant's Election Contest unquestionably challenges the qualification of Defendant

Dunn as the Republican nominee for the office of Secretary of State at the Statewide General

Election held on November 2,2010. Contestant's prayer for relief specifically requests a finding

that Defendant is "not qualified and not eligible for certification of votes [at the primary

election]. ... " Contestant makes references to "common law fraud," but makes those (false)

allegations in the context that Defendant Dunn violated criminal provisions of the Elections Code,

and alleges that Defendant Dunn was an ineligible candidate at the June 2010 Primary Election as

a result. Specifically, Plaintiffs action asserts the following:

First Cause otAcuon: "Dunn was not eligible to run as a Republican Candidate in the June 8, 2010 Republican Primary because of invalidation of voter registration due to the backdated signature on his voter registration card." (Complaint, pg. 4.)

Relief Requested: "Lack of valid voter registration ill validates olle's ability to be a Candidate on the ballot." (Complaint, pg. 4, emphasis added.)

Second Cause o{Action: "Invalidation of voter registration due to fraud in lack of mandatory disclosure of voter registration from at least two other states." (Complaint, pg. 4.)

Relief Requested: "Without valid voter registration in CA, one cannot be a candidate on the ballot, therefore DUlln 's candidacy needs to be ill validated due to fraud .... and therefore Taitz should be certified as a Republican Party nominee for Secretary of State." (Complaint, pg. 6, emphasis added.)

Third Cause ot Actian: "Invalidation of voter registration due to invalid nominations." (Complaint, pg. 7.)

Relief Requested: "If nominations were obtained without valid signatures, or by virtue of obtaining signatures by misrepresentation, by telling the signatories that this is a petition

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for a proposition, then the nomination is not valid. and consequentlv. the candidacy is disqualified." (Complaint, pg. 8, emphasis added.)

Fourth Cause ofAction: "Common law Fraud." (Complaint, pg. 9.)

Re/iefRequested: "Dunn defrauded Taitz and while doing so violated CEC §§ 18203, 18500, 18501, 18502 18002 and possibly 8001, which invalidates his registration and invalidates his candidacy, which serves as basis for denial of certification of votes received by Dunn in June 8, 2010 primary." (Complaint, pg. 11, emphasis added.)

Fifth Cause of Action: "Possible Common Law Uttering." (Complaint, pg. 11.)

Relief Requested: "Taitz has no ability to investigate this matter further, however Taitz requests this Honorable court to forward this matter further to the office of the District Attorney of Orange county for criminal investigation for possible uttering, forgery, misrepresentation, fraud related to nomination ofthe candidate on the ballot." (Complaint, pg. 12, emphasis added.)

Sixth Cause of Action: "Possible fraud related to Residency." (Complaint, pg. 12.)

Relief Requested: "If during the discovery, it is found that Dunn has filed his taxes in another state or filed his homestead exemption in another state, it would constitute yet another count of fraud committed by Dunn and would serve as all additional reasoll (or invalidation." (Complaint, pg. 12, emphasis added.)

Seventh Cause of Action: "Possible violation ofCEC§8001." (Complaint, pg. 12.)

Relief Requested: "It is not clear if there was a violatioll o'§ 8001 ["Declaration of Candidacy (or Partisan OUice'J, however it is clear that Dunn was concerned about possible violation of §800 1 and committed fraud to cover up. He attempted to violate § 8001 and by engaging in cover up, he violated § 18500 [criminal provision]." (Complaint, pg. 14, emphasis added.)

Eighth Cause of Action: "Invalidation due to intimidation and harassment of the candidate on the ballot and family of the candidate." (Complaint, pg. 14.)

Relief Requested: "Invalidity o(candidate as the result of intimidation." (Complaint, pg. 14, emphasis added.)

Prayer for Relief "Declaratory relief based on cOlltest ofelectioll deeming violation of CEC § § 18203, 18500, 18502, 18002 and common law fraud and not qualified and not eligible for certification of votes. Additionally Contestant is seeking Declaratory relief deeming Dunn disqualified to hold offlce ill California due to violation of § 1850 I." (Complaint, pg. 15.)

As is plainly apparent, each of Contestant's claims, and her prayer for relief, seek

Defendant Dunn's disqualification as a candidate for the office of Secretary of State at the June

5


1 2010 Primary Election. As the time for resolution of election contest complaints for the June

2 2010 Primary Election has now passed (even the November 2,2010 General Election has now

3 passed and been formally certified), Contestant's action is moot in its entirety, leaving this Court

4 without jurisdiction to consider the matter.

5 California courts have determined that mootness raises jurisdictional concerns that

6 warrant dismissal of a lawsuit. (See, e.g., Paoli v. California & Hawaiian Sugar Rejining Corp.

7 (1956) 140 Cal.App.2d 854, 857 ["To invoke the jurisdiction of a court of justice, it is primarily

8 essential that there be involved a genuine and existing controversy ... and although a case may

9 have originally presented such a controversy, if before the decision it has, through act of the

10 parties or other cause, lost that essential character, it is the duty of the court, upon the fact

11 appearing, to dismiss it." (emphasis added)]; Housing Group v. United Nat 'l Ins. Co. (200 I) 90

12 Cal.AppAth 1106, 1111-12 [lack of actual, present controversy implicates court's jurisdiction to

13 decide cause of action J.) Where a dispute becomes moot, "jurisdiction will not be retained to

14 determine merely an incidental question of costs." (Paoli, 140 Cal.App.2d at p. 857; and see

15 Salazar v. Eastin (1995) 9 Ca1.4th 836, 860 ["The rendering of advisory opinions falls within

16 neither the functions nor the jurisdiction of this court."]')

17 The present matter is rendered moot by reason of the events which have occurred since the

18 filing of Contestant's action. Namely the votes have been counted and canvassed and the results

19 certified for the Statewide General Election occurring on November 2, 2010. (Kilbourne v. City

20 of Carpinteria (1976) 56 Cal.App.3d 11,17 [Trial court lacked jurisdiction to invalidate the

21 election because post-election relief was improper.].)

22 In Kilbourne, a member of city council sought to have his recall invalidated on the ground

23 that an error in the printing of the ballot left out one letter of his surname. The court found that

24 the election was a "fait accompli" and there was no "effectual relief that could be granted to

25 petitioner even if his appeal had merit." (Id. (emphasis added).)

26 Thus, even assuming arguendo that Contestant's action had merit and Defendant was

27 improperly elected at the Primary Election on June 8, 2010, "correcting ballot errors contemplates

28 action which obviously must be done before the election." (McKinney v. Superior Court of San

6


Diego (2004) 124 Cal.App.4th 951,957 (emphasis added).) Long established public policy

2 requires that an election contest should be resolved in a timely matter relevant to the forthcoming

3 election. (Carlson v. Burt (1896) III Cal. 129, 132.) Voters have a right to stability of process

4 and confidence in their vote. California case law establishes that a qualified voter has a

5 constitutional right to vote in election without having his vote wrongfully denied, debased, or

6 diluted. (Canales v. City of Alviso (1970) 3 Ca1.3d 118, 130.) In sum, to now declare the June 8,

7 20 I 0 Statewide Primary Election null and void almost eight months after the election (and three

8 months after the General Election) would unquestionably interfere with voters constitutional

9 rights. (Jd.) Moreover, it is a primary principle of law as applied to election contests that it is the

10 duty of the court to validate the election if possible, and elections are to be held valid unless

11 plainly illegal. (Rideout v. The City of Los Angeles (1921) 185 Cal. 426, 428.)

12 Contestant had ample time and opportunity to seek a remedy ii.e., to have her name

13 placed on General Election ballot after the Primary Election and prior to the General Election).

14 However, Contestant did not pursue her Election Contest in a timely fashion and, thus, the matter

15 is now moot and this Court no longer maintains jurisdiction to provide the remedy sought by

16 Contestant.

17 Contestant's Prayer for Relief also improperly requests the remedy of declaratory relief.

18 However, declaratory relief may not be invoked where the controversy between the parties "has

19 become moot and no actual controversy exists relating to their legal rights and duties." (Pittenger

20 v. Home Savings & Loan Assn. (1958) 166 Cal.App.2d 32, 36.)

21 The caption on Contestant's action also improperly requests injunctive relief - though no

22 request for such relief is apparently pleaded or prayed for in her action. Nonetheless, under

23 California law, absent extraordinary circumstances, not present here, injunctive relief may not be

24 granted when events have rendered the relief unnecessary or ineffectual. (Paul v. Milk Depots,

25 Inc. (1964) 62 Cal.2d 129, 133.) Thus, an injunction will not be granted when conditions have so

26 changed that the requested relief no longer exists. (See, e.g., Donald v. Cafe Royale, Inc. (1990)

27 218 Cal.App.3d 168, 184 [action to enjoin violation of disabled person's right to equal access to

28 public facilities was rendered moot where the restaurant was no longer in business].)

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Even Contestant's Fourth, Fifth and Sixth Causes of Action are now moot, as they also

contest the election of Defendant Dunn at the June 2010 Primary Election.

Contestant's Fourth Cause of Action is captioned as a claim for "common law fraud."

However, within that Cause of Action, Contestant cites specifically to code sections contained in

4 5

Division 18 (commencing with Section 18000) of the Elections Code. Contestant's Fourth Cause of Action alleges that Defendant Dunn's violation of Elections Code sections 18203, 18500, 18501, 18502, and 1800 I "invalidates his registration and invalidates his candidacy." (Complaint, pg. 11.) In other words, the Fourth Cause of Action contests Defendant's election at

6

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the June 2010 Primary Election.

When brought in the context of challenging the election of a candidate at a primary

election, sections 18000 et seq. are only properly raised as an election contest There is no other

method provided by the Elections Code under which these sections may be civilly pleaded to challenge the election of a candidate at primary election. Elections Code section 16101, which provides the "Grounds for contesting a primary election," states specifically;

Any candidate at a primary election may contest the right of another candidate to nomination to the same office by filing an affidavit alleging any of the following grounds, that:

***

(b) The defendant has committed any offense against the elective franchise defined in Division 18 (commencing with SectioIl18000).

(Emphasis added.)

As a result, Contestant's Fourth Cause of Action, which specifically pleads multiple

sections of Di vision 18 of the Elections code, is an election contest that challenges "the right of

another candidate to nomination to the same office .... " It follows that Contestant's Fourth Cause

of Action is moot as Defendant Dunn is no longer the Republican nominee for the Office of

Secretary of State, and the General Election has now passed and been certified.

Though it is not clear from her pleadings, even if Contestant's Fifth and Sixth Causes of

Action make similar accusations as to fraud against the elective franchise, and attempt to establish

grounds for challenging Defendant's nomination at the June 2010 Primary Election, they, too, are

now untimely and moot.

8


· 2 of action therein is in fact a challenge to the Court's continuing jurisdiction to adjudicate each of

As stated above, the instant mootness challenge to the Contestant's action and each cause

9

3 her individual Causes of Action and Contestant's Elections Contest as a whole, and the mootness

4 challenge is properly submitted to the Court in a motion for judgment on the pleadings pursuant

5 to Section 438. Based on the foregoing, Contestant's action, and each cause of action therein

6 should be dismissed as the action is now beyond the jurisdiction of the Court based on mootness.

7 8

B.

The Court Also is Without Jurisdiction over Contestant's Action And Each Cause of Action Therein Because Contestant Failed to Adhere to the Statutory Requirements for Election Contests.

9 This Court is without jurisdiction to hear the matter on its face because Contestant failed

IOta comply with a number of critical requirements provided by the Elections Code for filing an

11 election contest. (See, e.g, Carlson v. Eassa (1997) 54 Cal.AppAth 684, 691, 62 Cal.Rptr.2d

12 884,882 [" ... lack of jurisdiction ... exists when a court grants 'relief which [it] has no power to

13 grant.' ... Where, for instance the court has no power to act' ... without the occurrence of certain

14 procedural prerequisites,' the court acts without jurisdiction .... "J.)

1 S Here the Court is unable to act on the substance of Contestant's matter because Contestant

16 failed to comply with "certain procedural prerequisites."

17

1.

Contestant did not reference election contest code.

18 Pursuant to Elections Code § 16400( d) the Contestant is required to set forth specifically

19 "the particular grounds of contest and the section of this code under which the statement is filed."

20 (Emphasis added.) Contestant failed to reference any section of the Elections Code contained in

21 Division 16 (commencing with section 16000), as required by statute for election contests.

22

2.

Contestant did not verify her statement of contest.

23 Pursuant to Elections Code § 16401 the "contestant shall verify the statement of contest,

24 as provided by Section 446 of the Code of Civil Procedure .... " Contestant failed to verify her

2S statement of contest as required by statute for election contests.

26

3.

Contestant's Election Contest was untimely filed.

27 Pursuant to Elections Code § 16421 the "affidavit shall be filed in the office of the clerk of

28 the superior court having jurisdiction, within five days after the completion of the official


3

4.

Contestant's Election Contest improperly requests declaratory relief.

canvass ... " Contestant filed her Election Contest on June 17,2010 - more than one month before

2 the results were certified by the Secretary of State on July 18,2010.

4 The California Supreme Court in Filarsky v. Superior Court (2002) 28 Ca1.4th 419 held it

5 was proper to refuse to grant declaratory relief when an appropriate procedure has been provided

6 by special statute. (Filarsky 28 Ca1.4th at p. 433.) Here, Elections Code sections 16000, et seq.

7 provide the basis for relief for election contests, and declaratory relief is not a form of relief

8 permitted therein.

9 As a result of the foregoing, this court is without jurisdiction to hear the matter based on

10 Contestant's failure to comply with mandatory procedural provisions of the Elections Code

11 governing election contests. (See, e.g., Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031, 1039-40

12 [Lack of jurisdiction occurs where, though the court may jurisdiction over the subject matter and

13 the parties in a fundamental sense, it has no power to act except in a particular manner, or to give

14 certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.].)

15 III. CONTESTANT'S ELECTION CONTEST AND EACH CAUSE OF ACTION THEREIN FAILS TO STATE A CAUSE OF ACTION FOR WHICH RELIEF

16 MAY BE GRANTED BECAUSE DEFENDANT DUNN COMPLIED WITH HIS RESPONSIBILITIES TO APPEAR ON THE BALLOT.

17 18 19 20 21

A motion for judgment on the pleadings has the same basic purpose and effect as a

general demurrer when an action fails to state a cause of action for which relief may be granted,

and like a demurrer is confined to the face of the pleading under attack. (See City of Fresno v.

California Highway Com. (1981) 118 Cal.App.3d 687,692.) Thus, the present Motion for

Judgment on the Pleadings must be sustained if the Court concludes the Election Contest fails to

22

state a cause of action for which relief may be granted. (Guglilmi v. Spelling-Goldberg

23 24

Productions (1979) 25 CaUd 860, 863 [motion sustained].)

A.

Contestant's First and Fourth Causes of Action Fail to State a Claim Upon Which Relief May Be Granted Because Defendant Dunn Satisfied the State's Eligibility Requirements to Seek Elective Office as a Republican Candidate for Secretary of State.

25

26

27 As to Contestant's First and Fourth Causes of Action, under the California Elections

28 Code, a candidate for a partisan office cannot file a declaration for candidacy unless: (1) he has

10


15 any time during twelve months prior to his declaration of candidacy.

16 To the contrary, all available records show that Dunn's only other political affiliation

17 (with the Florida Democratic Party) expired in 2005. (Election Contest, Exh. 12.) Contestant,

18 therefore, fails to allege any facts showing that Dunn violated the candidacy eligibility

19 requirements outlined in Elections Code § 8001 (a). Without-any such allegation, Contestant fails

20 to state a claim showing that Defendant Dunn violated the Elections Code, or committed fraud

, .

shown by affidavit to be affiliated with the political party for at least three months before

2 presenting his declaration of candidacy for that party's nomination; and (2) he has not been

3 registered as affiliated with another "qualified political party" within twelve months immediately

4 prior to the declaration. (Cal. Elec. Code, § 8001(a).) Defendant Dunn satisfied these Election

5 Code's requirements before filing his declaration for candidacy as Secretary of State.

6 First, Dunn satisfied the three-month requirement because he registered with the

7 Republican Party on March 13,2009, nearly twelve months before he declared his candidacy.

8 (See Election Contest, Exh. 1; and see RJN, ~ 1, and Exh. E thereto.) Second, Defendant Dunn

9 was not a member of any other qualified political party for the twelve months preceding his

10 declaration of candidacy.' (ld.)

11 In her Election Contest, Taitz presents no facts (or even allegations) that Dunn was a

12 member of any other political party for the twelve month period before March 2010, when he

13 declared his candidacy for Secretary of State. Contestant also fails to allege any facts showing

14 that Defendant Dunn had active voter registrations in Florida, Texas', or any other jurisdiction, at

21 against Contestant (or anyone else). For this reason, the Court should grant Defendant's Motion

22 for Judgment on the Pleadings, and dismiss each of Contestant's Causes of Action, including her

23 purported claim of fraud, which Contestant alleges in the criminal context - asserting that

24 Defendant Dunn violated criminal provisions of the Elections Code by improperly completing

25 voter registration affidavit. Importantly, Contestant's criminal claims also do not plead a civil

26 27 28

2 To support her claim that Defendant Dunn was registered to vote in Texas, Contestant presents what appears to be an investigation report from an online service stating that Dunn had an inactive voter registration in Texas in December 2001. (Election Contest, Exh. 2.) Contestant does not allege that Dunn was registered to vote in Texas at any time within the twelve months before March 2010, when he declared his candidacy for California Secretary of State.

11


· .

cause of action because there is no private right of action for criminal fraud under the Elections

2 Code in California.

3 In addition to the foregoing, Defendant Dunn's past affiliation with the Florida

4 Democratic Party could not have disqualified his candidacy because the Florida Democratic Party

5 is not a "qualified political party" as defined under the California Elections Code. California

6 Elections Code § 5100 defines a "qualified political party" as a party that fulfills any of the

7 following conditions related to California elections:

8

(1)

the party polled at least 2 percent of the vote in the last gubernatorial election;

the total number of voters registered with the party on or before the 135th day before the election equals at least 1 percent of the entire vote in the last gubernatorial election; or

the party filed a petition with the Secretary 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.

9 10 11 12

(2)

(3)

13

14 (Cal. Elec. Code, § 5100.)

15 The Florida Democratic Party is not a "qualified political party" in California as defined

16 under California Elections Code § 8001(b), because it had not fulfilled any of the above noted

17 conditions before the June 8, 2010 primary. Therefore, Dunn's past affiliation with that party

18 would not have disqualified his candidacy for Secretary of State under any circumstances.

19 20 21 22 23 24

Contestant's Second, Fourth and Seventh Causes of Action Fails to State a Claim Upon Which Relief May Be Granted Because Defendant Dunn's Prior Voter Registration Disclosure Also Was Statutorily Sufficient and Did Not Disqualify his Candidacy.

A voter's California registration form includes a "prior registration portion indicating

B.

whether the affiant has been registered at another address, under another name, or as intending to

affiliate with another party." (Cal. Elec. Code § 2150(a)(10).) "If the affiant has been so

25 26

registered, he or she shall give an additional statement giving that address, name, or party." (ld.) Contestant's Second, Fourth and Seventh Causes of Action hinge on the theory that Defendant Dunn's candidacy should be disqualified because he left blank the section in his voter

27

registration that calls for prior registration information. (Election Contest, pg 4, In. 22.)

28

Contestant's allegations run contrary to the Election Code's basic requirements for voter 12


..

eligibility: (1) that the voter is a United States citizen, and (2) California resident; (3) that the

2 voter is not in prison or on parole for a felony conviction; and (4) that the voter is at least 18 years

3 of age. (Cal. Elec. Code, § 210l.)

4 Dunn's purported omission of information regarding his prior registration touches on none

5 of these requirements, and therefore, does not provide sufficient justification for nullifying his

6 voting registration. Since the facts on record show that Dunn has satisfied the affiliation

7 requirements to run as a Republican candidate for Secretary of State, his alleged omission of

8 information in his voter registration record does not amount to any election law violation.

9 Moreover, there is no law imposing a duty on a court, registrars of voters, of the Secretary

11 prior registration. The relevant statutes do not require disqualification if a voter does not

lOaf State to nullify an elector's voter registration form because he did not complete the section on

12 complete the prior registration section, nor do they impose any duty on any official or agency to

13 take any action against the voter. (See Cal. Elec. Code, §§ 2150, 2153-54.) Without such an

14 affirmative duty, Contestant's action fails in that it seeks to require this court to take such steps.

19 previously registered to vote in California before March 2009.

20 Importantly, without any record of prior registration in California, Dunn did not need to

21 complete this section. And since Dunn was not a member of any qualified political party when

22 registering to vote in March 2009, he was not concealing any information that would cause any

23 COUlt or government official to disqualify his candidacy for Secretary of State.

24 For these reasons, the Court should grant this Motion for Judgment on the Pleadings as to

25 Contestant Taitz's Election Contest, including her purported Cause of Action for fraud.3

26

27

28

15 The Court should also grant this Motion for Judgment on the Pleadings because it appears

16 Dunn correctly left the prior-registration box blank. Line 16 of the voter registration form

17 completed by Dunn states: "If you were registered to vote before, fill out below." (Election

18 Contest, Exh. 1.) Contestant Taitz has not presented any facts showing that Defendant Dunn was

3 In her prayer for relief Contestant requests monetary damages based on fraud. However, monetary damages are not permitted in election contests. The only monetary award permitted by election contests are founds in Elections Code sectons16800 and 16803, allowing for the recovery of "costs" by the prevailing party.

13


9 10 11

12

13 14 ]5 16 17 18 19 20

21 22 23 24 25 26 27

28

5 6


'.

Defendant Dunn met all the requirements to seek the office of California Secretary of State at the

2 June 20 I 0 Primary Election and the November 2010 General Election. It follows that Contestant

3 Taitz's Election Contest fails to state a claim upon which relief may be granted, and this Court

4 should grant the instant Motion for Judgment on the Pleadings.

7

Contestant's Third Cause of Action Fails to State a Claim Upon Which Relief May Be Granted Because Defendant Dunn Submitted A Sufficient Number of Signatures to Seek Statewide Office.

Contestant's Third Cause of Action apparently alleges that three individuals who signed

C.

8

Defendant's candidate nomination papers did not voluntarily sign their names to the documents.

Contestant Taitz alleges that Defendant's nomination papers are defective as a result.

However, under Elections Code section 8062, Defendant Dunn was required to obtain 6S

signatures to qualify to run for office. In fact, Defendant Dunn obtained 100 signatures, far more

than the amount necessary. (RJN"r 5, and Exh. I thereto.) Thus, even discounting the three

signatures challenged by Contestant, Defendant obtained more than the requisite amount of

signatures to seek statewide office. Moreover, Contestant has not shown or properly alleged that

the three signatures at issue were utilized by the Registrar to arrive at the 65-signature count. As

a result, Contestant's Third Cause of Action fails to state a claim upon which relief may be

granted.

D.

Contestant's Fifth, Sixth, and Eighth Causes of Action Fail to State a Claim Upon Which Relief May Be Granted Because None Are Proper Subject Matter for an Election Contest.

Contestant's Fifth, Sixth, and Eighth Causes of Action make allegations that are not the

proper subject matter for matters challenging an election. Elections Code section 16101 provides the sole grounds under which a primary election may be challenged:

Any candidate at a primary election may contest the right of another candidate to nomination to the same office by filing an affidavit alleging any of the following grounds, that:

(a) The defendant is not eligible to the office in dispute.

(b) The defendant has committed any offense against the elective franchise defined in Division 18 (commencing with Section 18000).

(c) A sufficient number of votes were illegal, fraudulent, forged, or otherwise improper, and that had those votes not been counted, the 14

10 11 12 13 14 15 16

17 18

19

2 3

" . I·

defendant would not have received as many votes as the contestant.

(d) A sufficient number of eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote, and that had those voters been permitted to vote, the defendant would not have received as many votes as the contestant.

4

(e) Due to mistake, error, or misconduct the votes in any precinct were so

5 incorrectly counted as to change the result.

6 Contestant's Fifth, Sixth and Eighth Causes of Action do not specifically allege any of the

7 violations enumerated in Elections Code section 16101, and therefore fail to state a claim upon

8 which relief may be granted in the present matter.

Contestant Taitz's Election Contest also Fails to State a Cause of Action Upon Which Relief May Be Granted because the Matter is Moot.

Contestant's Election Contest also warrants dismissal under CCP section 438(c) because

9

E.

Contestant's action is now moot and thus no longer asserts a cause of action upon which relief

may be granted. As a result, Contestant's action, and each cause of action therein must be

dismissed based on a failure to state a cause of action for which relief may be granted.

CONCLUSION

Based on the foregoing, Defendant Damon Dunn hereby requests thatthis Court grant his

Motion for Judgment on the Pleadings as to the Contestant Taitz's Election Contest and Causes of

Action one through eight therein, without leave to amend the pleading because the defects in

Contestant's action cannot be cured, and that judgment be entered in favor of the Defendant.

20 Dated: January 21, 2011

Respectfully Submitted,

BELL, MeA REWS, & HILTACHK, LLP

21 22 23 24

25 26 27 28


15


10

SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER

2

Registrar of Voters.

2. Exhibit "F" - A true and correct copy of correspondence dated May 12,20 I 0 and


BELL, McANDREWS, & HILTACHK, LLP 455 Capito! Mall, Suite 80 I


Telephone: (916) 442-7757

Facsimile: (916) 442-7759

3 4 5


6 7 8

9

11 DR. ORLY TAITZ, ESQ,

12

13 14 15 16

17 18

19 20 21 22 23

24 25 26 27

28

Contestant,

v.


Defendants.

\

Case No. 30-2010-00381664

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT DAMON DUNN'S MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO CCP § 438

DATE: February 28, 20 II TIME: 2:00 p.m.

DEPT.: C33


Contest Filed: June 17, 2010

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

Defendant Damon Jerrell Dunn requests the CoUt1 to take judicial notice of the documents

1. Exhibit "E" - A true and correct copy Defendant Damon Dunn's Declaration of

Candidacy for the Office of California Secretary of State as maintained by the Orange County

authored by the Elections Fraud Investigation Unit of the Secretary of State in response to a

complaint filed against Defendant Damon Demurrer alleging his ineligibility to seek statewide

identified herein and attached hereto:

Request for Judicial Notice in Support of Motion for Judgment on the Pleadings

10

I I 12 13 14 15 16 17

18

19

20

21 22

23

24

25

26 27 28

2 3 4

electi ve office.

3. Exhibit "G" - A true and correct copy of selected pages of the Secretary of State's Official Statement of the Vote for the June 8, 2010 Statewide Direct Primary Election.

4. Exhibit "H" - A true and correct copy of selected pages of the Secretary of State's Official Statement of the Vote for the November 2,2010 Statewide General Election.

5 6

5. Exhibit "I" - A true and correct copy of Defendant Damon Dunn's nomination

7

signature verification documentation relative to his candidacy for Secretary of State in 20 I 0 as maintained by the Orange County Registrar of Voters.

8

9

MEMORt\.NDUM OF POINTS AND AUTHORITIES

Evidence Code section 452( c) provides that judicial notice may be taken of" ... Official acts of the legislative, executive, and judicial departments ... of any state of the United States." Section 452(c) also provides that judicial notice may be taken of any document published, recorded, or filed by any executive department. (See also Serrano v. Priest (1971) 5 Ca1.3d 584,

591; Moore v. Superior Court (2004) 117 Cal.App.4th 401,407 n.5; Wolfe v. State Farm Casualty & Insurance Company (1996) 46 Cal.App.4th 554, 567 n. 16: Fowler v. Howell (1996) 42 Ca1.App.4th 1746, 1750, Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125.)

"Official acts" include reports, records, files, and notices maintained by local governments,

including counties. (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134.)

Exhibits E through I are each documents received, filed and/or maintained by public

agencies and for which judicial notice may be taken.

Respectfully Submitted,

Dated: January 21, 2011

BELL, McANDREWS, & HILTACHK, LLP

By.~r;7/M

ARLES H. BELL, JR.

BRIAN T. HILDRETH

Auorneys for Defendant, DAMON DUNN

2

Request for Judicial Notice in Support of Motion for Judgment on the Pleadings

EXHIBIT E

EXHIBIT

- &

EXHIBIT E

-------_ .. ----- ...

OFFICIAL filiNG FORM

. .' . CONTEST lD: 1042

Dap'W ;\~ -. ::':;,·:·:·CAND,IQ.~T~!D: 1

,. . ;:~", 1 • . t ..... , •

I hereby declare myself a Republican Party candi ate for nomination to the office of Secretary of State, to be voted for at the Statewide Primary Election to be held June SJ 2010 and declare the

following to be ~:. ~

My name is: ~ (-\ WI '" IIJ. ~ ....... V'w,

iO I'lnR 10 -fllO:1 n

AI$fS.~F VOTERS USE DNl Y

DEGLARA TION OF CANDIDACY FIL.5D (Electior&ld1il:@~ffirul!~~!NJ@t~oo®~tate of the Stale 0 Carrrorllua

I request my name and occupational ballot designation to appear on the ballet as follows:

• Print Your Name for Use on the Ballot

S "\1,~ ~ \ D. '-", 'So -, V\ e: S J b l..,) \') ~J

Candidate initials if preferrlng no designation:

Print Occupational Ballot Designation Requested

Note: A ballot designation tS optional, Jf one is requesterra romp~ed BALLOl DESIGNATION WORKSHEET must be submltted.Jf no baUo' designation is requested, write in the word "NONE" and initial in the box. (Elections Code §§ 131m:, 13107.3) .

..

@/Resid ence Address:~___,,3,,-1~~~( _.:;..:V¥ ..... '\ _.:; C='-\,.,"-',-""i' .... I_s.-'(=-::J ..... 0..;:..~ _ ____;lA.~v ':..;.' ..>.3 _7'-D=-- ..... b--"'W=--o...~ ""'''::I'-''C'-- _

(Required}

elly

eli

S1ela

o Business Address: __ -.:...:I04-r~. _

SIaLe

o Mailing Address;

FAX: l_)

A~~---------------------

Official Website: (.0 vJ ,-'';. d~, ~ el"\. cC" .• , ..... , Lo v"",

----------~~~~~~~--~~~-------------------

NOTE: The Secretary of state will publish one ofthe above addresses in the certified list of candidates and on the SOS website. Please checkthe appropriate box above to indicate which address you wish to use for this purpose. If JJO box is selected, the mailing address will be used.

I meet the statutory and constitutiona' qualifications for this office 0ncluding but not limned to citizenship. residency and party affiliation, if required). I am at present an incumbent of the following public office (if any):

IMPORTANT; BACK SIDE OF PAGE MUST.BE COMPLETED

If nomtnated r will accept the nomination/office and not withdraw.

f

I declare under penalty of pe~~nder the ·Iaw:s Q~e State of California that the foregoing is true and correct.

?{ ~ r-, .

,::. / 0 ( 'Z.;:, t:i:.-tt....:"'" ;.,._;_) -<..vM&>.

Date Signature at-Candidate

State of California County of Orange

} }

55.

Subscribed and sworn to before me this i d lr...... day of __ ____.!.}-_~._-'V-"..::..:L. , 2010.

Notary Public (or other official)

Examined and certified by me this ((M day of _ ___..:.f'!_"'---::..... L.._. , 201 Q.

NEAL KELLEY, Registrar of Voters By ~ ;:::?:

WARNING: Eo"", "",..,n ",ding en ""hall oj a candidate IS gu~'y of a rrisd.""",,,,,, ""'0 de!ibo""er,· foils to f~. 01 Ih<; rrop-or lime and In 1l>e DropI!l pr;,a, pny dlld;m>~on oJ cond.oacy '" hI,lII .. ~!ilpn which fs entil:iedl to.be: 1'iJ~() und~ the ~on~ of thf!' SKdIOl'1!'> C-o:d'n le~ Code Se~QI1: 1~).

Deputy

OATH OF OFFICE

I, DAMON DUNN. do solemnly swear (Dr affirm) that I wil! support and defend the Const]tution of-the United States and the Constitution of the State of Callfornia. against all enemies. foreign and domestic; that f will bear irue faith and allegiance 10 the Constitution of the. United States and the Conslitutlon of the State of Califomia; that I take this obligation freely, without any mental reservation or purpose o~on; and th::swm well and failtifully discharge the duties upon

which I am about to enter. .. ~ '. .

~a,.. ........... ~

·Stale of California} S5. Signature of Candidate

County of Orange }

SubscrIbed and sworn to before me this i {j \l. day of i'-Jt ~/ i. ,2010.

\

_~.--='~~';:.::- :.-.

;:;:::> Notary Public (or other official)

NEAL·KELLEY, Registrar .of Voters

/1 if'7 1 c· ----- ..

. ~'f<C_ .-~.. 0 t

tdp-- -:.:.......--.:-. ,e13U y

Examined and certified by me Ihis lur ..... day of __ t'_l.<vz:-......:::....t....:...._ -. 2010.

NEAL KELLEY, Registrar of Voters

Certificate as to Candidate's Political Party Affiliation

IEiecliollS u.~a SeelIon1llHl1)

State of California County of Orange

ss.

j hereby cer1ffy thai (1) at the time of.presentatlon of this declaration and continuously for not less Ihan three months immediately prior thereto, or for as long BS heJshe has been eligible to vote in the slate, the above-named candidate is shown by his/her affidavit of registration, executed on J - f 7~ 0 If , to be affiliated with the political party the nomination of which he/she seeks, and (2) the candidate has not been registered as _affilialed wit!l any other political party fer the twelve-month pe,iod .immediately preceding the tiling of this declaration.

Dated this f[)fi.. day of ),t._~,)~ ,.2010_

Prior Regislratioll

By

Party Affiliation

"in p",}"

All code seciion references are 10 the California Electrons code unless staten olherwise.

Oedaration or Candidacy - Partisan 2010

EXHIBIT F

EXHIBIT

£

EXHIBIT F

DEBRA BOWEN I SECRETARY Of STATE STATE OF CALIFORNIA 1 ELECTIONS

]500 nth Street, 5th floor 1 Sacramento, CA 958141 'I'd (Oj6) 657-21661 Fax (9.16) 653-32]41 www.sos.ca.gov

May12,2010

Pamela Barnett

2541 Warrego Way Sacramento, CA 95826.

Dear Ms. Barnett:

We are responding to your recent faxed complaint questioning the eligibility of Secretary of State candidate Damon Dunn to be on the ballot. -

You questioned Mr. Dunn's eligibility to run based on the conditions set forth in Elections Code 8001 (a)(2). This section requires a candidate to not have been registered with any party except the one he/she seeks to be nominated from, within the preceding 12 months. The conflicting party evidence you cited was that Mr. Dunn was previously registered as a Democrat in the state of Florida. However, we contacted the office of the Duval County Supervisor of Elections and they reported that Mr. Dunn registered as a Democrat in 1999, but never voted. His Florida registration was subsequently cancelled in June 2005. Therefore, in March 2009, when Mr. Dunn registered as a Republican, he was not currently registered with any state and not

afflliated ... :+1. .. ~- •• party :0 cornoliance , .. :u ... c(" 800~ (~\(2\

It IIld l~U VVIlIl al I Y fJdll , 1 I LVlllfJllel ILt;; Hilil Lv I \elJ J.

You also questioned Mr. Dunn's failure to list his previous Florida registration on his March 2009 California voter reqistration. While Elections Code 2150 (a)(1 0) requires those registering to vote to disclose any prior registration, there are no criminal sanctions for non-compliance. !f you have evidence that this omission was intentional, please forward to our office.

Thank you for bringing this matter to our attention.

Sincerely,

Election Fraud Investigation Unit

EXHIBITG

EXHIBIT

G

EXHIBITG

"." " 'f" ~

'. "'®~®~_®~,l§){(W@U@' ',";~ ';~~ .. ~®e'~.~.'.~ [~1X~{th:a{,

Certificate of the Secretary of State

I, DEBRA BOWEN, Secretary of State of the State of California, hereby certify:

That the following is a full, true, and correct statement of the result of the official canvass of the returns of the June 8, 2010, Statewide Direct Primary Election.

IN WITNESS WHEREOF, I hereunto set my hand and affix the Great Seal of California, at Sacramento, this 16th day of July, 2010.

&bl~~

DEBRA BOWEN Secretary of State

e e
STATEMENT OF VOTE SUMMARY PAGES
Governor Oem Votes Percent Lieutenant Governor AI Votes Percent
Jim King 38,638 100.0%
Charles "Chuck" Pineda, Jr. 94,669 4.0%
Edmund G. "Jerry" Brown 2,021,189 84.4% Lieutenant Governor Grn Votes Percent
James "Jim I" Castillo 19,462 100.0%
Joe Symmon 54,122 2.3%
Lowell Darling 39,930 1.6% Lieutenant Governor Lib Votes Percent
Peter Schurman 35,450 1.4% Pamela J. Brown 18,276 '100.0%
Richard William Aguirre 95,596 4.0%
Vibert Greene 54,225 Lieutenant Governor P and F Votes Percent
2.3%
Nadia B. Smalley (W/I) 106 0.0% C.T. Weber 3,813 100.0%
Governor Rep Votes Percent Sec retary of State Oem Votes Percent
Bill Chambers 34,243 1.4% Debra BOwen· 2,044,327 100.0%
David Tully·Smith 24,978 1.0% Secretary of State Rep Votes Po~")
Douglas R. Hughes 26,085 1.0%
Damon Dunn 1,477,811 74.4%
Ken Miller 36,609 1.5%
OrlyTalb: 508,455 25.6%
lawrence "larry" Naritelll 54,202 2.3%
Roy V. Allmond, Jr. (W/I) 58 0.0%
Meg Whitman 1,529,534 64.4%
Robert C. Newman II 38,462 1.7% Secretary of State AI Votes Percent
Steve Poizner 632,940 26.7%
Steven Paul Mozena [W/I) 26 0.0% Merton O. Short 40,551 100.0%
Governor AI Votes Percent Secretary of State Grn Votes Percent
Chelene Nightingale 24,000 58.1% Ann Menasche 21,798 100.0%
Markham Robinson 17.327 41.9% Secretary of State Lib Votes Percent
GovernorGrn Votes Percent Christina Tobin 18,189 100.0%
Laura Weils 17,548 79.5% Secretary of State P and F Votes Percent
S. Deacon Alexander 4,533 20.5% Marylou Cabral 4,046 100.0%
Governor Lib Votes Percent Controller Oem
Votes Percent
Dale F. Ogden 17,477 100.0% John Chiang· 2,064,419 100.0%
Governor P and F Votes Percent Controller Rep
Votes Percent
Carlos Alvarez 1,906 45.3% David Evans 812,303
39.9%
Mohammad Arif 613 14.5% Tony Strickland
1.221,033 60.1%
Stewart A. Alexander 1,693 40.2%
Controller AI Votes Percent
Lieulen ant Governor Dem Votes Percent
Lawrence G. BeHz 24.436 56.3%
Eric Korevaar 257,349 10.9% Nathan E. Johnson 18,977 43.7%
Gavin Newsom 1,308,860 55.8%
Janice Hahn 780,115 33.3% Controller Gm Votes Percent
Lieutenant Governor Rep Ross D. Frankel 20,816 100.0%
Votes Percent
Abel Maldonado 939,370 43.6% Controller Lib Votes Percent
Bert Davis 130,486 6.1% Andrew "Andy" Favor 18,249 100.0%
Dave Harris 180,960 8.4%
Controller P and F Votes Percent
Sam Aanestad 668,345 31.0%
Scott L. Levitt 126,023 5.8% Karen Martinez 3,850 100.0%
Yvonne R. Girard 111,554 5.1% Treasurer Oem Votes Percent
Bill Lockyer"" 2,051,698 100.0%
'Incumbent 20 EXHIBITH

EXHIBIT

H

EXHIBITH

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STATEMENT OF VOTE SUMMARY PAGES
Governor Votes Percent Attorney GenQral Votes Percent
Jerry Brown 5,428,149 53B% Kamala D. Harris 4,442,781 46.1%
Meg Whitman 4,127,391 40.9% Steve Cooley 4,368,624 45.3%
Chelene Nightingale 166,312 1.7% Diane Beall Templin 169,993 1.7%
Laura Wells 129,224 1.2% Peter Allen 258,879 2.7%
Dale F. Ogden 150,895 1.5% Timothy J. Hannan 246,583 2.6%
Carlos Alvarez 92,851 0.9% Robert J. Evans 160,416 1.6%
Anselmo A. Chavez (W/I) 2 0%
Nadia B. Smalley (W/I) 8 0% Insurance Commissioner Votes Percent
Cassandra A. Lieurance (W/I) 285 0% Dave Jones 4,765,400 50.6%
Jacob Vangelisti (WII) 4 0% Mike Villines 3,540,626 37.6%
Lea Sherman (W/I) 43 0% Clay Pedersen 198,347 2.1%
Hugh Bagley (W/I) 4 0% William Balderston 252,301 2.6%
Rakesh Kumar Christian (W/I) 13 0% Richard S. Bronstein 372,676 4%
Rowan Millar (W/I) 4 0% Dina Josephine Padilla 293,502 3.1%
Lieuten ant Governor Votes Percent Superintendent of Public Instruction Votes Percent
Gavin Newsom 4,917,880 50.2% Larry Aceves 3,476,243 44.9%
Abel Maldonado 3,820,971 39% Tom Torlakson 4,222,946 54.6%
Jim King 184,901 1.9% Diane Lenning (WII) 46,061 0.5%
James "Jirni" Castillo 163,982 1.6%
Pamela J. Brown 574,636 5.9% Board of Equalization Member District 1 Votes Percent
C.T. wcoer 116,346 1.1% BettyT. Yee 1,617,369 63.1%
Karen England (W/I) 34,119 0.3% Kevin R. Scott 799,327 31.2%
Kennita Watson 77,929 3%
( Secretary of State Votes Sherill Borg 71,183 2.7%
( Debra Bowen 5,105,307
Damon Dunn 3,666.407 Board of Equalization Member District 2 Votes Percent
Merton D. Short 162,102 Chris Parker 1,019,844 42.9%
Ann Menasche 286,694 George Runner 1,189,504 50%
Christina Tobin 214,347 WiI!ard D. Michlin 112,825 4.7%
Marylou Cabral 164,450 1.7% Toby Mitchell-Sawyer 58,242 2.4%
Controller Votes Percent Board of Equalization Member District 3 Votes Percent
John Chian9 5,325,357 55.2% Mary Christian Heising 836,057 34.6%
Tony Strickland 3,487,014 36.1% Michelle Steel 1,325,538 54.9%
Lawrence G. Beliz 154,145 1.5% Terri Lussenheide 59,513 2.4%
Ross D. Frankel 191,282 1.9% Jerry L. Dixon 117.783 4.8%
Andrew "Andy" Favor 292,441 3.1% Mary Lou Fi nley 79,870 3.3%
Karen Martinez 209,638 2.2%
Board of Equalization Member District 4 Votes Percent
Treasurer Votes Percent Jerome E. Horton 1,223,906 71.8%
Bill Lockyer 5.433,222 56.5% Shawn Hoffman 215,639 12.6%
Mimi Walters 3,479,709 36.2% Peter "Pedro" De Baets 198,575 11.6%
Robert Lauten 135,931 1.4% Nancy lawrence 68,577 4%
Charles "Kit" Crittenden 231.160 2.4%
Edward M. Teyssier 218,384 2.2%
Debra L. Reiger 125,566 1.3% 8

Certificate of the Secretary of State

I, DEBRA BOWEN, Secretary of State of the State of California, hereby certity:

That the following is a full, true, and correct statement of the result of the official canvass of the returns of the November 2, 2010, General Election.

IN WITNESS WHEREOF, I hereunto set my hand and affix the Great Seal of California, at Sacramento, this e" day of January, 2011.

b~~

DEBRA BOWEN Secretary of State

The Statement of Vote for the November 2, 2010, General Election was originally certified on December 10,2010, as required by law. This updated Statement of Vote includes recertified vote totals from Solano County received December 31, 2010. While no election outcomes were affected by the recertification, all vote counts have changed slightly for statewide contests and district contests that include part of Solano County. Numbers for initiative, referendum, and political party qualifications were also adjusted.

EXHIBIT I

EXHIBIT

1

EXHIBIT I

NOMINATION SIGNATURES

Use for State Constitutional Offices and United States Senator: Governor, Lieutenant Governor, Secretary of State, Ccntroller, Insurance Commissioner, Treasurer, Attorney General, Superintendent of Public Instruction

i <\_l~_1

CONTEST 10: i l .. ' I_

NUMBER OF SIGNATURES SUBMITTED: i <.\ 0

CANDIDATE ID:~~ FILING DATE: }-('h,;,

NUMBER OF SIGNATURES NEEDED: 65

(

NUMBER OF VALID SIGNATURES: ~

SIGNATURES VERIFIED BY: ~ _

CANOl DATES NAME: __ -'--C_',:,_--"'-,-, • .c....\ ---,~_')_- l_,"'_,_,' _

(' (\., .

OFF ICE: J_'::_L_r'"_: '_k~.,¥-",,--'- __ '-'_~·_"_' !_i\' DISTRICT: _

r:

PARTY: __ __:_~ <_" ..... ;(_, ,_,t_t .::_" -_'.::_' ~ _

/

e, I I

DA TE: )( I ,I I ?: c: i a

r i

. Statement "Number of SignaturefFiled on Petition In Lieu of Filing Fee and/or Nomination Paper

Elections Code sections 8061,8082,8083,10704

I

I certify that I have examined the Petition in Lieu of Filing Fee and/or Nomination Paper filed on behalf

of DAMON DUNN, candidate for nomination for:

Office:

Party Affiliation:

Secretary of State

Republican

at the Statewide Primary Election to be held on June 8, 2010.

Check ONE category only:

~~ Statement of valid signatures-in-lieu (Complete Section A)

~~ Statement of valid signatures-in-lieu and nomination signatures (Complete A & B)

/ Statement of valid nomination signatures (Complete Section 8)

(A) The total number of signatures-in-lieu found SUFFICIENT is ~ _ _:. (8) I also certify that the nomination petitions filed on '300 It 0 (date) contain k>' valid nomination signatures (of the requfred number) required for nomination pursuant to Elections Code section 8062 .

• (not a cumulative total: provide the number to which you are currently certifying)

Dated this 10th day of March, 2010,

COUNTY ELECTIONS OFFICIAL

By ---fL-J!_-;IM-<4"'""t" ,----'-d~!-!:.J' ~L!:::!.' ....::>::::.._ ~

7 /Deputy

Orange County

Statement of;; of Sigs - Slate Constkutional.doc [6.810)

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