1 EDMUND G. B R O W N JR.

Attomey General of Califomia

2 STEPHEN P. ACQUISTO
Supervising Deputy Attomey General
3 ANTHONY P. O'BRIEN
Deputy Attomey General
LED/ENDORSED
4 State Bar No. 232650
13001 Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916)323-6879
Fax: (916)324-8835
7 E-mail: Aiithony.OBrien@doj.ca.gov

8 Attorneys for Defendants Edmund G Brown Jr

California Attorney General, and Debra Bowen,
9 California Secretary of State
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
14 PAMELA BARNETT, CaseNo. 34-2010-00077415

15 Plaintiff, MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF
16 DEMURRER TO PLAINTIFF'S FIRST
AMENDED COMPLAINT
17 DAMON JERRELL DUNN, ET AL..
(Code Civ. Proc § 430.10, subd. (e))
18 Defendants. Date: October 25, 2010
Time: 9:00 a.m.
19 Dept: 54
Judge: The Honorable Shelleyanne
20 Chang
Trial Date: Not Yet Set
21 Action Filed: May 10, 2010

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Memorandum of Points and Authorities in Support of

Demurrer to Plamtiffs Complaint (34-2010-00077415)
 1 TABLE OF CONTENTS

2 Page
3 Introduction 1
Background 2
A. Factual background 2
B. Procedural history 4
6 Standard of Review 5
Argument 6
I. The court should sustain the demurrer because Bamett's requested relief
8 would substantially interfere with the conduct of the election 6
Q II. Bamett failed to state a claim for relief because Dunn satisfied the
eligibility requirements to run for Secretary of State, and is not disqualified
.„ by any omissions in his voter registration form 8
A. Dunn satisfied the state's eligibility requirements to run as a
11 republican candidate for Secretary of State 8
B. Bamett failed to allege facts showing that Dunn's omission of prior
registration information invalidated his Califomia voter registration
.., form 10
III. The court should sustain defendants' demurrer as to Bamett's breach of
14 fiduciary duty claims because defendants fulfilled all duties in ensuring
that Dunn's candidacy complied with election laws 12
A. Bowen did not breach any duty to Bamett in verifying Dimn's
eligibility for candidacy 12
16
B. Brovm did not breach any duty owed to Bamett, because, as
17 Attomey General, he had no statutory duty to enforce election laws 13
rv. The court should sustain demurrer on Bamett's seventh cause of action for
18 unjust enrichment because she has not alleged facts supporting any ofher
underlying claims 14
19
V. The court should deny Bamett any further leave to amend her complaint
20 because she cannot state a claim for relief. 14
Conclusion 15
21

22

23

24

25

26

27

28

Memorandum of Pomts and Authonties m Support of

Demurrer to Plaintiffs Complamt (34-2010-00077415)
 ^ TABLE OF AUTHORITIES
2
CASES
3
Aguilar v. Atlantic Richfield Co.
4 (2001) 25 CaUth 826 3
5 Assembly v. Deukmejian
(1982) 30 Cal.3d 638 13
6

7 Blake v. Kirwan
(1985) 39 Cal.3d 311 14
8
Cantu V. Resolution Trust Corp.
9 (1992) 4 Cal.App.4th 857 6,14
10 Chambers v. Ashley
(1939) 33 Cal.App.2d 390 6

Cooke V. Superior Court

12
(1989) 213 Cal.App.3d 401 2
13
Friedland v. City of Long Beach
14 (1998) 62 Cal.App.4th 835 5
15 Gentry v. eBay, Inc.
(2002) 99 Cal.App.4th 816 6
16 GulfIns. Co. V. TIG Ins. Co.
(2001) 86 Cal.App.4th 422 5
17

18
Minsky V. City of Los Angeles
19 (1974) 11 Cal.3d 113 14
20 Moore v. Conliffe
(1994) 7 CaUth 634 5
21 Stracke v. Farquar

22 (1942) 20 Cal.2d 82 6

23 STATUTES

24 Code Civ. Proc, § 430.10, subd. (e) 5

25 Code Civ. Proc, § 430.30, subd. (a) 5

26 Elec Code, § 2101 11
27 Elec Code §§ 2150-54 and 8001 5
28 ii
Memorandum of Pomts and Authorities m Support of
Demurrer to Plamtiffs Complamt (34-2010-00077415)
 1 Elec Code, §§ 2150, 2153-54 11

2 Elec Code §§ 2150,2153, and 2154 5

3 Elec Code, § 2150, subd. (a)(10) 10
4
Elec Code § 2153 10
5
Elec Code, § 2153, subd. (c) 11
6
Elec Code § 5100 9,10
7
Elec. Code § 8001 passim
8
Elec Code § 8001(b) 3, 10
9
Elec Code § 8001, subd. (a) ". 9
10
Elec Code § 8001, subd. (a) 8
11
12 Elec Code §§ 8070, 8082 12

13 Elec Code § 8120 7,12

14 Elec Code § 13314, subd. (a)(1) 6

15 Elec Code § 13314, subd. (a)(2)(B) .' 6, 8

16 Evid. Code § 452 2

17 Evid. Code § 452, subd. (c) 2
18 Fla. Stat. § 98.065, subd. (4)(c) 2
19
Gov. Code § 12172.5 .' 12,13
20
CONSTITUTIONAL PROVISIONS
21
Cal. Const., art II, § 2.5 6, 8
22

23

24

25

26

27

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111
Memorandum of Pomts and Authonties m Support of
Demun-er to Plamtiffs Complamt (34-2010-00077415)
 1
INTRODUCTION
2
In her First Amended Complaint, Plaintiff Pamela Bamett seeks an order to remove Damon
3
Dunn from the General Election ballot for Califomia Secretary of State. But Bamett's claim is
4
based on her unsupported and erroneous contentions that Durm has not been affiliated with the
5
Republican Party for a sufficient amount oftime before declaring his candidacy, and that Dunn
6
did not complete the prior registration section when registering to vote in Califomia in March
7
2009. Bamett also seeks to remove Secretary of State Debra Bowen and Attomey General
8
Edmund G. Brown Jr. from the General Election ballot, claiming that they breached their
9
fiduciary duties to Bamett by not disqualifying Dunn as a candidate for Secretary of State.
10
The Court should sustain Defendants Brown and Bowen's demurrer without leave to
11
amend. The issuance of Bamett's requested relief—orders to remove Dunn, Bowen, and Brown
12
from the General Election ballot—^would substantially interfere wdth the November 2010 election.
13
The primary election ended on June 8,2010, the parties have nominated candidates for the
14
Secretary of State and Govemor races, and the state's voters will elect a Secretary of State and
15
Govemor in the November 2, 2010 General Election. Bamett's requested relief, therefore, would
16
result in the nullification of votes cast for Dunn, Bowen, and Brown.
17
The Court should also sustain the demurrer because Dunn properly qualified as an eligible
18
candidate for the Republican nomination for Secretary of State. Before declaring his candidacy,
19
Dunn needed to have been affiliated with the Califomia Republican party for at least three
20
months, and not affiliated with any other qualified Califomia party for at least twelve months.
21
Dunn cleared both of these requirements. He registered as a Republican nearly twelve months
22
before declaring his candidacy for Secretary of State in March 2010. And Dunn's prior
23
registration in the Florida Democratic Party did not disqualify his candidacy because it expired
24
five years before he declared his candidacy, and the Florida Democratic Party is not a qualified
25
political party in Califomia.
26
Defendants are also entitled to dismissal because Bamett's complaint fails to state any facts
27
showing that Defendants breached their duties in the processing of Dunn's declaration for
28
1
Memorandum of Points and Authorities in Support of
Demurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 candidacy. The Secretary of State fulfilled her duties by not only presenting Dunn as one ofthe

2 certified candidates for Secretary of State, but also confirming Dunn's eligibility after Bamett had

3 requested an investigation. As Attomey General, Brown has no statutory duty to investigate

4 Dunn's eligibility, especially when the Secretary of State has not found any reason to refer the

5 matter to the Attomey General. And Bamett's,complaint fails to raise any facts showing that any

6 ofthe defendants intentionally concealed or misrepresented information regarding Dunn's

7 eligibility to run for Secretary of State. For these reasons, the Court should sustain Defendants'

8 demurrer.

9 In sustaining this demurrer, the Court should also deny Bamett any further leave to amend

10 her complaint. Bamett has exercised her right to amend her complaint once before answering

11 Defendants' initial demurrer. But even in her First Amended Complaint, Bamett has still failed to

12 allege any facts stating a claim for relief Because Bamett carmot allege any facts showing that

13 the Defendants are liable, the Court'should deny her leave to amend her complaint yet again, and

14 should close this matter.

15
BACKGROUND
16
A. Factual Background.
17
Damon Durm is the Republican candidate for Califomia Secretary of State. (Req. for
18
Judicial Notice, Ex. 1, 6.)'
19
In 1999, Dunn registered to vote in Florida and stated his affiliation with the Democratic
20
Party. (First Amended Compl. (FAC), Exh. D.) Under Florida law, a resident is placed on the
21
inactive voter list when he or she does not respond to a mailed address confirmation sent by the
22
county supervisor of elections. (Fla. Stat. § 98.065, subd. (4)(c).) The voter is then removed
23
from the statewide voter registration system ifhe or she does not vote for two consecutive federal
24
elections, and fails to update his or her voter registration information. (Ibid.)
25

26 ' The official acts ofthe legislative, executive, and judicial departments ofany state of
the United States may be judicially noticed. (Evid. Code § 452, subd. (c).) (See Cooke v
27 Superior Court (1989) 213 Cal.App.3d 401, 416 [records ofa coimty are properly noticed under
Evid. Code § 452 (official acts ofthe state), since counties are legal subdivisions ofthe state].)
^^ 2
Memorandum of Points and Authorities in Support of
Demurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 In March 2002, the Duval County, Florida Supervisor of Elections converted Duim's voting

2 status to inactive because Dunn did not have any voting history, and did not respond to mail sent

3 to his Jacksonville residence. (Req. for Judicial Notice, Exh. 2.) Dunn had no further activity on

4 his Florida voting record, and on June 6, 2005, the Duval County Elections Supervisor converted

5 Dunn to an ineligible voter in Florida, thus requiring Dunn to reregister ifhe wanted to vote in

6 Florida. (Req. for Judicial Notice, Ex. 2.)

7 On March 13, 2009, Durm registered to vote in Califomia and stated his affiliation with the

8 Republican Party. (FAC, Exh. A.) On March 10,2010, Dunn declared his candidacy for the

9 Republican nomination for Califomia Secretary of State. (Req. for Judicial Notice, Exh. 1.) As

10 part of his Declaration of Candidacy, the Orange County, Califomia Regisfrar of Voters certified

11 that Durm: (1) had been affiliated with the California Republican Party for at least three months

12 before filing his declaration for candidacy; and (2) was not affiliated with any other political party

13 for twelve months before declaring his candidacy. (Req. for Judicial Notice, Exh. 1.)

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

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

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

17 Office ofthe Supervisor of Elections. (Req. for Judicial Notice, Exh. 2.)

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

19 regarding Dunn's eligibility. (Req. for Judicial Notice, Exh. 3.)^ In the letter the Secretary of

20 State's Office noted that Dunn's registration as a Democrat in Florida expired in June 2005, and

21 that he was not affiliated with any party when he registered to vote in Califomia in March 2009.

22 ^ In her amended complaint, Bamett incorrectly states that Dunn declared his candidacy
on November 5, 2009, when he submitted a'Candidacy Intention Statement. (FAC ^ 29, Exh. B.)
23 As opposed to the Declaration of Candidacy, which includes an affidavit showing the candidate's
affiliation with his or her political party, as required under Elections Code § 8001(b), the
24 Candidate Intention Statement is not mandated by Elections Code § 8001. Therefore, Dunn
declared his candidacy on March 10, 2010, when he filed the state-mandated Declaration of
25 Candidacy form (Req. for Judicial Notice, Exh. 1), not when he filed the Candidate Intention
Statement.
26 ^ The Court'may take judicial notice ofany document published, recorded, or filed by any
executive department. (See Aguilar v Atlantic Richfield Co (2001) 25 Cal.4th 826, 842 n.3 ['"we
27 may take judicial notice ofthe report ofa state executive officer as reflecting an 'official act'"]
(citation omitted).)
28
3
Memorandum of Points and Authorities in Support of
Demurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 (Req. for Judicial Notice, Exh. 3.) The Secretary of State's Office also noted that there were no

2 criminal sanctions for Dunn's failure to complete the section on prior registration in his voter

3 regisfration card. (Req. for Judicial Notice, Exh. 3.)

4 On June 8, 2010, Califomia completed the Statewide Direct Primary Election. (Req. for

5 Judicial Notice, Exh. 5.) Dunn won the Republican Primary for Califomia Secretary of State,

6 receiving 74.4 percent ofthe state's Republican votes. (Req. for Judicial Notice, Exh. 5.)

7 B. Procedural History.
8 On May 10, 2010, Bamett filed a complaint against Damon Dunn, Secretary of State

9 Bowen, and Attomey General Brown, alleging that: (1) Bowen violated the Elections Code §

10 8001 and defrauded the Plaintiff by allowing Dunn to run as a Republican candidate for Secretary

11 of State; and (2) Brown and Bowen both breached their fiduciary duty owed to Plaintiff by not

12 disqualifying Dunn from the election.

13 On June 2, 2010, Bamett filed a petition for writ ofmandate in the Third District Court of

14 Appeal, requesting that the appellate court issue a writ barring Dunn from voting in the June 8,

15 2010 primary. The court denied Bamett's writ on June 3, 2010 without entertaining opposing

16 briefs or oral argument.

17 On June 2, and again on June 7, 2010, Bamett filed motions in this Court for orders

18 shortening time for a hearing requesting: (1) that Dunn be removed from the primary ballot; and

19 (2) a court order preventing elections officials from counting any ofthe primary votes cast for

20 Dunn. The Court rejected both motions, noting that Bamett failed to show good cause as to why

21 she did not bring these motions earlier.

22 On June 11, 2010, Secretary of State Bowen and Attomey General Brown filed a demurrer

23 to Bamett's complaint. Bamett never responded to the demurrer. Instead, on July 12, 2010,

24 Bamett filed her First Amended Complaint, naming Dunn, Bowen, Brown, and Neal Kelley, the

25 Orange County Regisfrar of Voters, as defendants. Covmsel for Secretary of State Bowen and

26 Attomey General Brown received service ofthe First Amended Complaint on July 15, 2010.

27 Bamett's First Amended Complaint includes the followdng allegations against Defendants

28 Bowen and Brown:

4
Memorandum of Points and Authorities m Support of
Demun-er to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 • Second Cause of Action: Secretary of State Bowen spoiled evidence and infringed on
PlaintifPs First Amendment rights by allowing Damon Duim to run as a Republican
^ candidate for Secretary of State. (FAC, IJH 43-69.)
3
• Third Cause ofAction: Bowen violated Califomia Election Code §§ 2150, 2153, and
4 2154 by not seeking Dunn's prior regisfration information when he registered to vote in
Califomia. (FAC, HlJ 70-79.)

• Fourth Cause ofAction: Bowen and Attomey General Brown acted confrary to public
6
policy by failing to ascertain information regarding Dunn's prior out-of-state voting
7 record. (FAC,^1180-88.)

8 • Fifth Cause ofAction: Bowen acted with undue influence by allowing Durm to proceed
with his campaign, even though he violated Califomia Elections Code §§ 2150-54 and
9 8001. (FAC, IIII 89-100.)

• Sixth Cause ofAction: Bowen and Brown breached their fiduciary duties owed to
11 Plaintiff by failing to investigate Duim's incomplete voter registration form. (FAC, H^
101-135.)
12
Seventh Cause ofAction: Bowen and Brovm were unjustly enriched by allowing Dunn's
13 candidacy for Secretary of State. (FAC, f^ 136-37.)
14 As discussed below, none of these causes of action allege facts sufficient to state a claim for

15 relief against either Defendant Bowen or Brovm. Therefore, the Court should sustain this

16 demurrer wdthout leave to amend,

^^ STANDARD OF REVIEW
18 A demurrer tests the sufficiency ofthe complaint; that is, whether it states facts sufficient to

19 constitute a cause of action. (Code Civ. Proc, § 430.10, subd. (e); Friedland v City of Long

20 Beach (1998) 62 Cal.App.4th 835, 841-842.) To make this determination, the trial court must

21 accept as trae all material facts pleaded in the complaint and matters ofwhich it may take judicial

22 notice, but not conclusions of law. (Code Civ. Proc, § 430.30, subd. (a); Moore v Conliffe

23 (1994) 7 CaUth 634, 638.)

24 "[A]ny allegations that are contrary to the law or to a fact of which judicial notice may be

25 taken will be treated as a nullity." (GulfIns Co v TIG Ins. Co (2001) 86 Cal.App.4tii 422, 429.)

26 A party may not avoid demurrer by suppressing facts, including those that are judicially
27

28

Memorandum of Points and Authorities in Support of

Demurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 noticeable, which prove the pleaded facts false. (Cantu v Resolution Trust Corp. (1992) 4

2 Cal.App.4th 857, 877.)

3 Where the complaint's allegations or judicially noticeable facts reveal the existence ofan

4 affirmative defense, the plaintiff must allege specific facts that avoid the apparent defense.

5 (Gentry v. eBay, Inc (2002) 99 Cal.App.4th 816, 824.) Absent such allegations, the complaint is

6 subject to demurrer for failure to state a cause of action. (Ibid)

7 ARGUMENT
8 I. T H E COURT SHOULD SUSTAIN THE DEMURRER BECAUSE BARNETT'S REQUESTED
RELIEF WOULD SUBSTANTIALLY INTERFERE WITH THE CONDUCT OF THE
9 ELECTION.

10 Actions to remove candidates from the ballot should be denied when they are untimely,

11 moot, or would interfere with the conduct ofthe election. The Califomia Constitution provides

12 that "[a] voter who casts a vote in an election in accordance wdth the laws ofthis State shall have

13 that vote counted." (Cal. Const, art. II, § 2.5.) The Elections Code prevents the issuance or writs

14 that wdll "substantially interfere with the conduct ofthe election." (Elec. Code § 13314, subd.

15 (a)(2)(B).) And courts have denied untimely actions to omit names from the ballot when the

16 election had already begun, or had since ended. (See Stracke v. Farquar (1942) 20 Cal.2d 82

17 [refusing to grant a petition for a peremptory writ ofmandate to compel the omission ofthe

18 names of seven persons from the ballot because "the ballot already had been printed and

19 distributed to certain voters"]; see also Chambers v Ashley (1939) 33 Cal.App.2d 390, 391

20 [denying as moot writ to keep the name of a judge off of the primary election ballot since the

21 primary election had already passed].)

22 Here, Bamett's requested relief—^removal of Duim, Bowen and Brown from the general

23 election ballots—is similarly moot, and would greatly interfere with the conduct ofthis election.

24 The June 8 primary election has long passed, and the parties have selected their nominees for

25
'' Bamett brought this action as a complaint, even though a writ ofmandate would have
26 been the more appropriate means for relief (See Elec Code § 13314, subd. (a)(1) [prescribing a
writ ofmandate as the sole vehicle for challenging a violation of state election law by an
27 elector].) Since the relief Bamett requests more closely resembles the relief provided through a
writ ofmandate, defendants refer to election laws regarding writ relief
28
6
Memorandum of Points and Authorities m Support of
Demurrer to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 Secretary of State and Govemor (Req. for Judicial Notice, Exh. 5, 6.) Moreover, the Secretary

2 of State has begun publishing the general election ballot materials, which list Bowen and Dunn as

3 candidates for Secretary of State, and Brovm as the Democratic Candidate for Govemor. (Req.

4 for Judicial Notice, Ex. 6, 7.) By October 4, the Secretary of State will begin processing vote-by-

5 mail applications. (Req. for Judicial Notice, Exh. 7.) Therefore, any attempt to sfrike Durm,

6 Bowen, and Brown from the ballot at this stage ofthe election wdll substantially interfere wdth the

7 general election, and result in the nullification of votes cast for all three of these candidates during

8 the primary and general elections. For this reason, the Court should deny Bamett's request for

9 relief

10 Moreover, Bamett unreasonably delayed in filing the initial complaint imtil May 10,2010,

11 only 29 days before the primary election. (Compl. p. 1; Req. for Judicial Notice, Ex. 1.) And she

12 did not file the First Amended Complaint until July 12,2010, well after the primary election.

13 (FAC, p. 1.) Bamett relies solely on the Dunn's Florida and Califomia voter registration forms,

14 and Candidate Intention Statements as evidence that Dunn failed to meet the eligibility

15 requirements under Elections Code § 8001. (FAC, Exhs. A, B, D.) Dunnfiled the last of these

16 forms—the Candidate Intention Statement—in November 2009—well before April 1, 2010, when

17 Bowen submitted Duim's name as among the certified candidates for Secretary of State. (FAC,

18 Exh. B; Req. for Judicial Notice, Exh. 4; Elec. Code § 8120.)

19 Bamett could have brought this legal challenge before the Secretary of State submitted the

20 certified list of candidates. She could have also brought this challenge before persons in the

21 military and overseas began voting in the primary election (April 9, 2010), and before counties

22 began mailing sample ballots for the primary election (April 29, 2010). (Req. for Judicial Notice,

23 Ex. 4.) But Bamett did not file her initial complaint until well after these critical election events

24 had already taken place.

25 In her amended complaint, Bamett claims that she brought the lawsuit "immediately after

26 realizing that the Secretary of State was going to fail to act on her fraud complaint" against Dunn.

27 (FAC, ^ 13.) Bamett, however, did not contact the Secretary of State's office about her complaint

28 against Dunn until May 3, 2010, when she faxed a letter to the Secretary of State's office. (FAC,
7
Memorandum of Points and Authorities in Support of
Demuner to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 Exh. J.) On May 12, 2010, the Secretary of State's responded to Bamett's faxed inquiry

2 regarding Dunn's ehgibility. (Req. for Judicial Notice, Exh. 3.) Bamett does not allege that the

3 Secretary of State delayed in responding to Bamett's inquiry, or that the Secretary of State

4 prevented Bamett from raising her complaint in this Court before May 10, 2010. And Bamett

5 does not state why the filing ofher claim with the Secretary of State prevented her from filing a

6 similar claim in this Court at the same time. Bamett's justification ofher delay, therefore, lacks

7 any merit.

8 The lateness of Bamett's petition is particularly egregious because the primary election

9 ended on June 8, 2010. Any decision at this time that affects the eligibility of Durm, Bowen, and

10 Brown to be on the general election ballots would nullify the primary election votes cast for these

11 candidates—a result that violates the Califomia Constitution's specific provision requiring the

12 counting of every lawfiilly cast vote, and would result in the substantial interference with the

13 conduct ofthe election. (Cal. Const, art. II, § 2.5; Elec. Code § 13314, subd. (a)(2)(B).) For tiiis

14 reason, the Court should deny Bamett's request relief, and sustain this demurrer without leave to

15 amend.

16 II. BARNETT FAILED TO STATE A CLAIM FOR RELIEF BECAUSE DUNN SATISFIED THE
ELIGIBILITY REQUIREMENTS TO RUN FOR SECRETARY OF STATE, AND IS NOT
17 DISQUALIFIED BY ANY OMISSIONS IN H I S VOTER REGISTRATION FORM.

18 A. Dunn Satisfied the State's Eligibility Requirements to Run as a Republican

Candidate for Secretary of State.
19
Under Califomia Elections Code, a candidate for a partisan office cannot file a declaration
20
for candidacy unless: (1) he has shovm by affidavit to be affiliated wdth the political party for at
21
least three months before presenting his declaration of candidacy for that party's nomination; and
22
(2) he has not been registered as affiliated with another "qualified political party" within twelve
23
months immediately prior to the declaration. (Elec. Code § 8001, subd. (a).)
24
Here, the Court should sustain the demurrer because Dunn satisfied the Election Code's
25
requirements before filing his declaration for candidacy as Secretary of State. First, Dunn
26
satisfied the three-month requirement because he registered with the Republican Party on March
27
13, 2009, nearly twelve months before he declared his candidacy. (FAC, Exh. A; Req. for
28
8
Memorandum of Points and Authorities in Support of
Demuner to Plaintiff s First Amended Complaint (34-2010-00077415)
 1 Judicial Notice, Exh. 1.) And second, Dunn was not a member of any other qualified political

2 party for the twelve months preceding his declaration of candidacy. (FAC, Exh. A; Req. for

3 Judicial Notice, Exh. 1.)

4 In her First Amended Complaint, Bamett presents no facts (or even allegations) that Dunn

5 was a member ofany other political party for the twelve month period before March 2010, when

6 he declared his candidacy for Secretary of State. In her Second Cause ofAction, Bamett alleges

7 that Bowen spoiled evidence and violated her First Amendment Rights by not publicizing Dimn's

8 prior voter registration in Florida and Texas.^ (FAC, Tif 57, 61, 67, Exh. Jl). And in her Fourth

9 Cause ofAction, Bamett contends that Secretary of State Bowen and Attomey General Brovm

10 acted contrary to public policy because they did not ascertain information regarding Dunn's prior

11 out-of-state voting record. (FAC, §§ 80-88.) These claims lack any merit because Duim was not

12 registered with any other political party within twelve months before declaring his candidacy.

13 Bamett fails to allege any facts showing that Dunn had active voter registrations in either of these

14 states, or in any other jurisdiction, at any time during twelve months prior to his declaration of

15 candidacy. To the contrary, all available records show that Dimn's only other political

16 affiliation—^with the Florida Democratic Party—expired in 2005. (Req. for Judicial Notice, Exh.

17 2.) So Dunn satisfied the candidacy eligibility requirements outlined in Elections Code § 8001,

18 subdivision (a). Secretary of State Bowen and Attomey General Brovm, therefore, did not violate

19 the Election Code, PlaintifFs First Amendment rights, or public policy by allowing Dunn's

20 candidacy to proceed. For this reason, the Court should sustain Defendants' demurrer as to

21 Bamett's Second and Fourth Causes ofAction without leave to amend.

22 Moreover, Duim's past affiliation with the Florida Democratic Party could not have

23 disqualified his candidacy because the Florida Democratic Party is not a "qualified political

24 party" as defined under the Califomia Elections Code. Elections Code § 5100 defines a

25

26
^ To support her claim that Dunn was registered to vote in Texas, Bamett presents what
27 appears to be an investigation report from an online service stating that Dunn had an inactive
voter registration in Texas in December 2001. (FAC, Exh. Jl.)
28
9
Memorandum of Points and Authorities in Support of
Demuner to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 "qualified political party" as a party that fulfills any ofthe followdng conditions related to

2 California elections:

(1) the party polled at least 2 percent ofthe vote in the last gubematorial election;
A (2) the total number of voters registered with the party on or before the 135th day before
the election equals at least 1 percent ofthe entire vote in the last gubematorial
5 election; or
(3) the party filed a petition with the Secretary of State, on or before the 135th day before
6 the primary, with signatures of voters equal to 10 percent ofthe ofthe state's entire
vote for the previous gubematorial election.

g (Elec Code §5100.)

9 The Florida Democratic Party is not a "qualified political party" as defined under Elections
10 Code § 8001(b), because it has not fulfilled any ofthe above noted conditions before the June 8,
11 2010 primary. Therefore, Duim's past affiliation with that party would not have disqualified his
12 candidacy for Secretary of State under any circumstances.
13
B. Barnett Failed to Allege Facts Showing that Dunn's Omission of Prior
14 Registration Information Invalidated His California Voter Registration
Form.
A voter's Califomia regisfration form includes a "prior regisfration portion indicating
15
whether the affiant has been registered at another address, under another name, or as intending to
16
affiliate with another party." (Elec. Code, § 2150, subd. (a)(10).) "Ifthe affiant has been so
17
registered, he or she shall give an additional statement giving that address, name, or party."
18
(Ibid.)
19

20 Bamett's Third and Fifth Causes ofAction hinge on the theory that Secretary of State

21 Bowen should have disqualified Dunn's candidacy because he left blank the section in his voter

22 registration that calls for prior registration information. (FAC, Yi 10-19, 89-100, Exh. A.) To

23 support her argument, Bamett cites Elections Code § 2153, which identifies steps that a county

24 elections official should generally take to fill in blank spaces in the voting registration form:

///
25
///
26
///
27

28 10
Memorandum of Points and Authorities in Support of
Demuner to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 Iftiie affidavit does not contain all ofthe information required, and the county
elections official is not able to collect the missing information by telephone, but
2 the mailing address ofthe affiant is legible, the coimty elections official shall
2 inform the affiant ofthe reason for rejection and shall send to the affiant a new
Califomia Voter Registration Form.
4
(Elec Code, §2153, subd. (c).)
5
Bamett's allegations hinge on an interpretation ofthe Elections Code that requires
6
nullification of voter registration if a voter does not fill out the voter registration section ofthe
7
form. This hypertechnical constraction lacks any legal support and runs confrary to the Election
8
Code's basic requirements for voter eligibility: (1) that the voter is a United States citizen, and a
9
(2) Califomia resident; (3) that the voter is not in prison or on parole for a felony conviction; and
10
(4) that the voter is at least 18 years ofage. (Elec. Code, § 2101.) Dunn's omission of
11
information regarding his prior regisfration touches on none of these requirements, and therefore,
12
does not provide sufficient justification for nullifying his voting regisfration. At most,
13
information regarding Dunn's prior registration goes toward his eligibility for running for office.
14
(Elec. Code, § 8001.) Since the facts on record show that Dunn has satisfied the affiliation
15
requirements to run as a Republican candidate for Secretary of State, his omission of information
16
in his voter regisfration record—and Bowen's decision not to disqualify him on the basis of that
17
omission—does not amount to any election law violation.
18
Moreover, there this no law imposing a duty on the Secretary of State to nullify an elector's
19
voter registiation form because he did not complete the section on prior registiation. The statutes
20
Bamett relies on do not require disqualification if a voter does not complete the prior regisfration
21
section, nor do they impose any duty on the Secretary of State to take any action against the voter.
22
(Elec. Code, §§2150, 2153-54.) Without such an affirmative duty, Bamett cannot allege that the
23
Secretary of State violated the Election Code or acted with undue influence in allowing Dunn's
24
campaign to proceed.
25
The demurrer should also be sustained because it appears Dunn correctly left the prior-
26
registration box blank. Line 16 ofthe voter regisfration form completed by Dunn states: "Ifyou
27
were registered to vote before, fill out below." (FAC, Exh. A.) Bamett has not presented any
28
11
Memorandum of Points and Authorities in Support of
Demuner to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 facts showing that Dunn was previously registered to vote in Califomia before March 2009.

2 Without any record of prior registration in Califomia, Dunn did not need to complete this section.

3 And since Dunn was not a member of any qualified political party when registering to vote in

4 March 2009, he was not concealing any information that would give Bowen, or any govemment

5 official, cause to disqualify his candidacy for Secretary of State. For these reasons, the Court

6 should sustain this demurrer as to Bamett's Third and Fifth Causes ofAction without leave to

7 amend.

8 III. THE COURT SHOULD SUSTAIN DEFENDANTS' DEMURRER AS TO BARNETT'S

BREACH OF FIDUCIARY DUTY CLAIMS BECAUSE DEFENDANTS FULFILLED A L L
9 DUTIES IN ENSURING THAT DUNN'S CANDIDACY COMPLIED WITH ELECTION LAWS.

10 A. Bowen Did Not Breach Any Duty to Barnett in Verifying Dunn's Eligibility
for Candidacy.

12 As the chief elections officer ofthe state, the "Secretary of State shall see that elections are

13 efficientiy conducted and that state election laws are enforced." (Gov. Code § 12172.5.) To

14 determine if there has been any violation of election laws, the Secretary of State may examine

15 ballots, vote-counting computer programs, "and any other records of elections officials." (Ibid.)

16 If the Secretary of State finds that any election laws are not being enforced, he or she "shall call

17 the violation to the attention ofthe district attomey ofthe county or to the Attomey General."

18 (Ibid.)

19 With respect to the determination of candidate eligibility, the Secretary of State is

20 responsible for: (1) filing nomination documents received from the county elections officials

21 (Elections Code §§ 8070, 8082); and (2) tiansmitting to each county elections official a certified

22 list of candidates eligible for the direct primary. (Elec. Code § 8120.)

23 In her Sixth Cause ofAction, Bamett claims that Secretary of State Bowen breached her

24 fiduciary duties by not disqualifying Dunn as a candidate for Secretary of State. (FAC, §§ 101-

25 30.) Bamett's claim however, is based on the false premise that Dunn's omission of prior

26 registiation on his voting registration form disqualified his candidacy. (FAC, Tif 105, 112-15.)

27 As noted above, Dunn's omission does not invalidate his voting eligibility, and it does not give
28
12
Memorandum of Points and Authorities in Support of
Demuner to Plaintiffs First Amended Complaint (134-2010-00077415)
 1 rise to a duty for Bowen to disqualify his candidacy. Because Bamett has not alleged any facts to

2 create a duty, she cannot allege that Bowen breached any fiduciary duty in not disqualifying

3 Dunn from the race. For this reason, the Court should sustain the demurrer as to Bamett's Sixth

4 Cause of Action.

5 Confrary to Bamett's allegations, Bowen has fully executed her obligation to enforce the

6 election laws, by verifying Dunn's candidacy after Orange County elections officials certified his

7 eligibility. (Req. for Judicial Notice, Exh. 1.) In a letter response to Bamett's claims against

8 Dunn's candidacy, the Secretary of State's office confirmed that Dunn met the affiliation

9 requirements under Elections Code § 8001. (Req. for Judicial Notice, Exh. 2, 3.) Secretary of

10 State Bowen upheld her statutory duties in ensuring that Dunn's candidacy complied with

11 election laws, and is entitled to dismissal of Bamett's complaint.

12 Bamett also alleges that Bowen defrauded her by "concealing] and enter[ing] false

13 statements into the public record with intention of fraudulently obtaining votes." (FAC, Tif 124.)

14 Bamett does not identify the allegedly false statements made by Bowen. Moreover, the Secretary

15 of State's office investigated the impact of Dunn's failure to list his prior registiation in Florida,

16 and found no intentional misconduct. (Req. for Judicial Notice, Ex. 3.) Bamett's fraud claim

17 lacks any legal or factual merit. For this reason, the Court should sustain Defendants' demurrer

18 without leave to amend.

19 B. Brown Did Not Breach Any Duty Owed to Barnett, Because, as Attorney
General, He Had No Statutory Duty to Enforce Election Laws.

21 In her Sixth Cause ofAction, Bamett also alleges that Attomey General Brown breached

22 his fiduciary duties by not disqualifying Dunn as a candidate due to his incomplete voter

23 regisfration form. (FAC, ff 81-83, 103.) The Attomey General, however, has no duty to

24 intervene in an election law claim, unless the Secretary of State finds evidence of an election law

25 violation, and refers the matter to the Attomey General. (Gov. Code § 12172.5; see Assembly v.

26 Deukmejian (1982) 30 Cal.3d 638, 650 [stating that tiie Secretary of State, not tiie Attomey

27 General, is "the official charged with ensuring proper application ofthe state's elections laws"].)
28
13
Memorandum of Pomts and Authorities m Support of
Demuner to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 Here, there was no evidence of any election law violation, so the Secretary of State had no need

2 to refer the matter to the Attomey General. The Attomey General, therefore, had no duty to

3 investigate Bamett's claims against Dunn, and is therefore entitled to dismissal ofthis matter.

4 IV. THE COURT SHOULD SUSTAIN DEMURRER ON BARNETT'S SEVENTH CAUSE OF

ACTION FOR UNJUST ENRICHMENT BECAUSE SHE HAS N O T ALLEGED FACTS
5 SUPPORTING ANY OF H E R UNDERLYING CLAIMS.

6 Bamett also alleges that Defendants Bowen and Brown were unjustly enriched as a result of

7 their actions in allowing Dunn's candidacy to proceed. (FAC, ff 136-37.) Bamett's claim

8 however, relies solely on the allegations that defendants' actions constitute common law

9 violations "for unjust enrichment to damage Plaintiff' for an undisclosed amount. (FAC, f 137.)

10 As noted above, Bamett has failed to present any allegations sufficient for stating a cause of

11 action against either Bowen or Brown. She therefore cannot state a claim that Bowen or Brown

12 are unjustly enriched by their actions. For this reason, the Court should sustain defendants'

13 demurrer as to Bamett's Seventh Cause ofAction

14 V. THE COURT SHOULD DENY BARNETT ANY FURTHER LEAVE TO AMEND H E R

COMPLAINT BECAUSE SHE CANNOT STATE A CLAIM FOR RELIEF.

15 After a demurrer has been fully argued, the Court can sustain the demurrer, but should
16 allow leave to amend if "there is a reasonable possibility that a defect in the complaint can be
17 cured by amendment or that the pleading liberally constraed can state a cause of action." (Minsky
18 V City ofLos Angeles (1974) 11 Cal.3d 113,118.) The Court, however, may sustain a demurrer
19 without leave to amend if there is no "reasonable possibility" that the complaint's defect can be
20 cured by amendment. (Blake v i<:/rwa« (1985) 39 Cal.3d 311, 318.) "[A] tiial court does not
21 abuse its discretion when it sustains a demurrer without leave to amend if either (a) the facts and
22 the nature ofthe claims are clear and no liability exists, or (b) it is probable from the nature ofthe
23 defects and previous unsuccessfiil attempts to plead that the plaintiff cannot state a claim."
24 (Cantu V Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
25 Here, the Court should sustain this demurrer without granting Bamett any further leave to
26 amend her complaint. Bamett has already exercised her right to amend her complaint once, after
27 defendants filed their initial demurrer. But, in both filed complaints, Bamett has failed to allege
28 14
Memorandum of Points and Authorities in Support of
Demuner to Plaintiffs First Amended Complaint (34-2010-00077415)
 1 any claim for relief Her allegations are based on misinterpretations of California's and Florida's

2 law. Moreover, Bamett has failed to provide any facts supporting her claims. To the confrary, all

3 available facts show that: (1) Dunn is eligible to run as the Republican candidate for Secretary of

4 State; (2) Secretary of State Bowen investigated and confirmed Dunn's eligibility (Req. for

5 Judicial Notice, Exh. 2, 3); and (3) Attomey General Brovm has no duty to investigate Dunn's

6 eligibility, because there is no evidence showing he violated any election laws. None of Bamett's

7 allegations show liability among any ofthe defendants. Moreover, Bamett has failed in repeated

8 attempts to state a claim for relief For these reasons, the Court should deny leave to amend the

9 complaint.

10 CONCLUSION
11 Bamett's late request for relief—which includes removal of Dunn, Bowen, and Brovm from

12 the November 2010 ballot—^would interfere wdth the ongoing election process. Moreover, the

13 complaint and judicially noticed documents fail to show that Dunn violated any election laws in

14 declaring his candidacy for Secretary of State, or that Secretary of State Bowen breached any of

15 her duties in certifying his candidacy. Bamett's complaint also fails to allege that Attomey

16 General Brovm had any duty to intervene in Duim's declaration for candidacy. For these reasons,

17 defendants request that the Court sustain their demurrer without leave to amend, and dismiss this

18 action.

19 Dated: August 13, 2010 Respectfiilly Submitted,

20 EDMUND G. BROWN JR. '

Attomey General of Califomia
21 STEPHEN P. ACQUISTO
Supervising Deputy Attomey General

ANTHONY P. O'BRIEN
24 Deputy Attomey General
Attorneys for Defendants Edmund G
25 Brown J r , California Attorney General,
and Debra Bowen, California Secretary of
26 State
SA2010101350
27 10573480.doc

28
15
Memorandum of Points and Authorities in Support of
Demuner to Plamtiffs First Amended Complaint (34-2010-00077415)