7 8 9

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER

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Defendants.

ELEc.TRm.ICALLV' FILED S!Jj:leri€lr C€l!Jrt €lf Calif€lmia, CQ!Jrrty Qf Orafj~e

0310J 12011 at [11 :36 :[10 PM Clerk Qf the S!Jj:leriQr CQ!Jrt By Rla~helle \i:lvra, Cli:!j:luty Clerk

,Charles H Bell, Jr. (SBN 060553) Brian T. Hildreth (SBN 214131)

BELL, McANDREWS, & HIL TACHK, LLP 455 Capitol Mall, Suite 600

Sacramento, California 95814

Telephone: (916) 442-7757

Facsimile: (916) 442-7759

Attorneys for Defendant, DAMON DUNN

6

DR. ORL Y TAITZ, ESQ,

Contestant,

v.

DAMON DUNN and DOES 1 through 18,

Case No. 30-2010-00381664

REPLY TO CONTESTANT'S OPPOSITION TO DEFENDANT'S MOTION FOR .ruDGMENT ON THE PLEADINGS.

DATE: March 14, 2011 TIME: 2:00 p.m. DEPT.: C33

JUDGE: Hon Geoffrey T. Glass

Contest Filed: June 17,2010

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

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Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

NOTICE TO THE COURT AND CONTESTANTORLY TAITZ: In conjunction with

the filing of this Reply Memorandum of Points and Authorities, Defendant Damon Dunn also has filed an Objection and Request to Strike Contestant Orly Taitz's Memorandum of Points and

Authorities in Opposition to Defendant's Motion for Judgment on the Pleadings. Contestant's Opposition brief violated both the California Code of Civil Procedure and Rules of Court as it

was not served using an appropriate method of service; did not contain a proper certificate of

service; and exceeded the maximum allowable page limit for opposition briefs by six pages.

(Contestant did not seek, and this Court did not grant, permission for Contestant to exceed the 15-

page limit for opposition memoranda.)

In the event the Court determines that Contestant's Opposition brief does comply with the requirements of the Code of Civil Procedure and the Rules of Court, Defendant files the present

Reply Memorandum.

I. INTRODUCTION

Defendant Damon Dunn ("Defendant" or "Dunn") hereby replies to Contestant Orly Taitz's ("Contestant") Opposition to Defendant's Motion for Judgment on the Pleadings

("Opposition").

Contestant's Opposition is fraught with red herrings, inapplicable citations, and wandering legal arguments. Her Opposition utterly fails to refute Defendant's statute-based contentions that her Election Contest was untimely filed, is now moot, and improperly requests relief not permitted under the Elections Code.

Moreover, despite her strenuous protestations otherwise, Contestant does not maintain a

cause of action for common law fraud. Not only has Contestant failed to properly allege with the required specificity a cause of action for fraud, she also has wholly ignored the Secretary of State's "Voter Registration Regulations" regulations which address her very grievance -- that Defendant omitted prior out-of-state (and expired) voter registrations on his California voter

registration affidavit. Specifically, California Code of Regulations, section 19050.6 (captioned:

"Requirements for Valid Registration") states that "[i]f no prior registration is shown [on the voter registration affidavit], it shall be presumed that the person is not registered to vote in 1

1 California." (Emphasis added.)

2 Notably, a presumption on the part of the Orange County Registrar of Voters in March

3 2009 (when Defendant submitted his California voter registration) that Defendant was not

4 registered to vote in California at the time his completed his voter registration affidavit would

5 have been entirely correct. Contestant presents no evidence to the contrary.

6 Importantly, the Secretary of State "Voter Registration Regulations" further state that a

7 voter's affidavit of registration "shall be valid notwithstanding the failure to complete the

8 information to which the above presumptions [including prior voter registrations] apply .... " (2

9 Cal. Code Regs., § 19050.6(e).)

10 Each of Contestant's remaining claims for "elections fraud, voter fraud, nomination fraud"

11 are each allegations that contest Defendant's election at the June 8, 2010 Primary Election (i.e.

12 Election Contest claims). Each of these claims suffer from numerous procedural and factual

13 deficiencies, as established in Defendant's Memorandum of Points and Authorities in Support of

14 Motion for Judgment on the Pleadings.

15 16 17 18 19 20 21 22 23 24 25 26 27 28

II.

LEGAL ARGUMENT

A.

Contestant's Election Contest Fails to State a Claim for Common Law Fraud Upon Which Relief May Be Granted Because Contestant Has Not Alleged Defendant Misrepresented a Material Fact that Resulted in Fraud.

Contestant purports to maintain a claim for common law fraud "seeking damages of over

$50,000 spent by her while running against the candidate, who was committing fraud." (Opposition to Motion for Judgment on the Pleadings, p. 5, Ins. 21-23; see also Election Contest, p. 9, In. 10.) However, Contestant has failed to allege and support vital elements of a cause of

action for common law fraud -- which must be pleaded in order to maintain a cause of action for

fraud in California. As a result of Contestant's critical omissions, and also the particular facts of

the present case, this Court must dismiss Contestant's cause( s) of action for common law fraud.

Under California law, in order to maintain a cause of action for common law fraud a

complaining party "must plead and prove in full, factually and specifically, all of the elements of the cause of action ... [g]eneral and conclusory claims of fraud will not suffice." (Conrad v.

2

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

1 Bank of America (App. 3 Dist. 1996) 45 Cal.AppAth .133, 156, rehearing denied, review denied

2 (emphasis added); see also Roberts v. Ball, Hunt, Hart, Brown and Baerwitz (App. 2 Dist. 1976)

3 57 Cal.App.3d 104, 109 [In pleading common law fraud, the claim "must be alleged in proper

4 manner and facts constituting fraud must be alleged with sufficient specificity to allow defendant

5 to understand fully the nature of the charge made."].) Importantly, the "policy of liberal

6 construction" towards pleadings "will not ordinarily be invoked to sustain a pleading of a cause of

7 action for common law fraud that is defective in any material respect." (Lazar v. Superior Court

8 (1996) 12 Cal.4th 631,645 (emphasis added).)

9 The well-established common law elements offraud in Califomia are:

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(1)

Misrepresentation of a material fact (consisting of false representation,

concealment or nondisclosure);

Knowledge of falsity (scienter);

(2) (3) (4) (5)

Intent to deceive and induce reliance;

Justifiable reliance on the misrepresentation; and

Resulting damage.

16 (See Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 100-101; Seeger v. Odell (1941) 18

17 Cal.2d 409, 414; Harazim v. Lynam (1968) 267 Cal.App.2d 127, 130; see also 5 Witkin,

18 Summary of Cal. Law 10th (2005) Torts, § 772, p. 1121.)1 Contestant's Election Contest fails to

19 properly allege each of these five elements of common law fraud, and notably is not based on a

20 misrepresentation of material fact.

21 22 23 24 25 26 27 28

1 Fraud and deceit are further defined in Civil Code sections 1709 and 1710. Civil Code section 1709 defines fraudulent deceit generally: "One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." CivilCode section. 1719 specifies four kinds of deceit: "A deceit, within the meaning of the last section, is either: [m . 'I. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true [intentional misrepresentation of fact]; [m 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true [negligent misrepresentation of fact]; [m 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact [concealment or suppression of fact]; or, [m 4. A promise, made without any intention of performing it." (Emphasis added.)

3

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

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Misrepresentation of a Material Fact. Under California law, "[ w ]hether or not a

representation or misrepresentation is material would and does depend largely upon the attendant

circumstances of each particular case." (Grady v. Luy (Cal. Ct. App. 1931) 117 Cal.App. 292,

294.)

In the present matter, Contestant alleges that Defendant committed a single act of fraud that led to seven separate instances of injury. (Election Contest, p. 10, Ins. 6-28.) The single. alleged act of fraud relates to Defendant's apparent failure to disclose prior voter registrations in Texas and Florida on his California voter registration card executed in March 2009. (Jd.)

Contestant's allegation is not a proper basis for claiming a misrepresentation of a material fact, because California law simply does not treat the omission of prior voter history as material

to a voter's affidavit of voter registration (where the registrant is not registered to vote in

California at the time he/she completed a voter registration card). In fact the Secretary of State has promulgated clear guidelines in the form of formal "Voter Registration Regulations" directing

counties to presume a voter has not previously been registered to vote in California where no

prior registrations are disclosed on the voter registration affidavit.

California Code of Regulations, section 19050.6 (captioned: "Requirements for Valid

Registration") states specifically:

In the event that the county clerk receives an affidavit of registration that does not include portions of the information for which space is provided, the county clerk or registrar of voters shall apply the following rebuttable presumptions:

***

( e) If no prior registration is shown, it shall be presumed that the person is not registered to vote in California. An elector's affidavit of registration as a voter shall be valid notwithstanding the failure to complete the information to which the above presumptions apply, absent evidence rebutting the presumption.

(Emphasis added.)

As provided in Defendant's Points and Authorities in Support of his Motion for Judgment

on the Pleadings, Defendant maintained no prior registration in California or any active

4

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

1 registration in any other state at the time he registered to vote in California in March 2009.

5

2 Therefore, Defendant Dunn maintained no responsibility or requirement to complete the section

3 on his voter registration affidavit regarding prior voter registrations.

4 It follows that, since Defendant Dunn was neither actively registered to vote anywhere in

5 the United States (nor specifically actively registered with any qualified political party in

6 California at the time he registered to vote in March 2009), he was not misrepresenting a material

7 fact. Simply put, Defendant disclosed all required information such that no court or government

8 official would have had cause to disqualify his voter registration and/or candidacy for Secretary

9 of State. The Orange County Registrar of Voters was entirely correct to presume (as provided

10 under Regulation 19050.6) that Defendant Dunn was not registered in California at the time he

11 completed his voter registration affidavit in Mach 2009. It follows, that Defendant Dunn made no

12 material misrepresentation on his voter registration card.

13 Contestant also alleges that Defendant failed to disclose his prior voter registrations in his

14 oath of office. However, no such disclosure is required in a candidate's oath of office in

15 California. (See Defendant's Request for Judicial Notice in Support of Motion for Judgment on

16 the Pleadings ("RJN") ~ 1, and Exh. E thereto.)

17 Because Contestant has failed to properly plead that Defendant misrepresented a material

18 fact, the remaining elements of her claim for common law fraud must fail. Like cascading

19 dominoes, the failure of the first element necessarily results in the failure of the remaining four

20 elements of a cause of action for common law fraud.

21 Knowledge of Falsity. Since no "falsity" exists by Defendant's omission of his prior out-

-

22 of-state (and inactive) voter registrations on his California voter registration affidavit, Contestant

23 can not establish that Defendant had any knowledge of any misrepresentation of a material fact.

24 Intent to Deceive and Induce Reliance. Contestant also fails to allege that Defendant

25 had a "knowing intent to induce someone's action to his or her detriment with false

26 representations of fact." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

27 (Cal.Ct.App. 1998) 68 Cal.App.4th 445, 482, emphasis added.) "Fraud is an intentional tort."

28 (Id.) It is the element of intent which makes fraud actionable. (Lacher v. Superior Court (1991)

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

6

1 230 Cal.App.3d 1038, 1046-1047, 281 Cal.Rptr. 640; 5 Witkin, Cal. Procedure (3d ed. 1985)

2 Pleading, § 677, p. 127.)

I

3 Defendant Dunn had no obligation to complete the section in his voter registration card

4 regarding prior out-of-state (and invalid) voter registrations, pursuant to Secretary of State

5 Regulation 19050.5. Therefore, Defendant cannot be shown to have had any specific intention to

6 deceive the Orange County Registrar of Voters, California voters, Contestant, or any other

7 relevant individual or entity.

S Moreover, Constant has not (and cannot) show that Defendant had a specific "intent to

9 induce [Contestant's] reliance on a misrepresentation or nondisclosure" as is required to establish

10 liability for her fraud claim. (Textron Financial Corp. v. National Union Fire Ins. Co. of

11 Pittsburgh (App.4 Dist. 2004) 118 Cal.App.4th 1061, 1073.) Contestant has not specifically

12 alleged that Defendant acted with an intention to purposely induce her reliance on his omission of

13 his prior (out-of-state and expired) voter registration(s). In addition, because Defendant had no

14 obligation to disclose the information about which Contestant complains, no specific intention

15 can be established by Contestant under any circumstances.

16 Contestant, thus, fails to establish this necessary "intent" element on at least two grounds.

17 Justifiable Reliance on the Misrepresentation. Because no misrepresentation occurred,

18 Contestant also is unable to establish this element of common law fraud. Moreover, as

1'9 established by the Election Contest on file in this matter, Contestant had knowledge of

20 Defendant's prior registrations on or before April 7, 2010, some two months before the June 8

21 election, and less than.one month after nomination papers were due. (See Election Contest and

22 Exhibit 2 thereto.) This means Contestant is unable to establish that she somehow ''justifiably

23 relied" to her detriment on Defendant's permissible omission of his prior out-of-state and expired

24 voter registration(s) from outside California.

25 Consequential Damages. To establish liability for common law fraud it is essential that

26 that the person complaining of fraud actually have relied on the alleged fraud, and suffered

27 damages as a result. (Schroeder v. Auto Driveaway Co. (1974) 11 Ca1.3d 908, 917;

28 Commonwealth Mortgage Assurance Co. v. Superior Court (1989) 211 Cal.App.3d 508,518-521;

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

1 Brown v. Critchfield (1980) 100 Cal.App.3d 858,866.) These so-called "consequential damages"

2 are a critical element of the cause of action for common law fraud. (Small v. Fritz Companies,

3 Inc. (2003) 30 Cal.4th 167, 202.) "Misrepresentation, even maliciously committed, does not

4 support a cause of action unless the plaintiff suffered consequential damages." (Id., Emphasis

5 added.)

6 Contestant's pleadings fail to allege this required "cause and effect relationship between·

7 the fraud and damages sought; [and, as a result] no cause of action is stated." (Small, supra, 30

8 CalAth at 202 (emphasis added).) "Assuming ... a claimant's reliance on the actionable

9 misrepresentation, no liability attaches if the damages sustained were otherwise inevitable or due

10 to unrelated causes." (Goehring v. Chapman University (2004) 121 Cal.AppAth 353; see also

11 Gagne v. Bertran (1954) 43 Cal.2d 481,491-492.)

12 Here, since no material misrepresentation was made by Defendant, Contestant cannot

13 establish she suffered any consequential damages as a result.

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B.

Contestant's Remaining Causes of Action for "Fraud" Are Merely Attempts at Contesting the Election of Defendant Damon Dunn at the June 8, 2010 Statewide Primary Election.

Contestant claims she maintains other causes of action for "elections fraud, voter fraud,

nomination fraud." (See Opposition, p. 5, Ins 18-19.) However, these other claims merely allege that Defendant Dunn was "not eligible to hold the office in dispute" and/or that Defendant

committed an "offense against the elective franchise defined in Division 18 [of the Elections

Code]," which are two of the specifically enumerated grounds for bringing a post-primary election contest. (See Cal. Elec. Code, § 16101 ("Grounds for contesting primary election").)

Division 18, commencing with section 18000, comprises the penal provisions of the Elections

Code.

In fact, "[ e ]lection results may only be challenged on one of the grounds specified in the

Elections Code." (Bradley v. Perrodin (App. 2 Dist. 2003) 106 Cal.AppAth 1153, 1173 review denied; see also Howe v. Board of Sup 'rs of San Diego County (App. 1931) 118 Cal.App. 306,

312 ["The right to contest an election is purely statutory, and must be determined in accordance with the provisions of the statute."]') Moreover, the purpose of an election contest is to ascertain 7

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

1 the will of the people at the polls, fairly, honestly and legally expressed. (Friends 0/ Sierra

2 Madre v. City of Sierra Madre (2001) 25 Ca1.4th 165.)

3· Because the overriding character of Contestant's remaining claims challenge the right of

4 Defendant Dunn to hold office, they are pure-and-simple an election contest, and must be treated

5 as such. Moreover, since the law provides no other right or process to make such challenges (or

6 remedies not provided by the Elections Code), Contestant's remaining claims are properly the

7 purview of Elections Code sections 16000, et seq. Because the time has now passed for such

8 challenges and the matter is now moot; and because Defendant affirmatively complied with the

9 relevant legal and administrative authorities in seeking the office of the Secretary of State, this

10 Court should dismiss all claims in Contestant's action.

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C.

Defendant Opposed Contestant's Earlier Attempt to Expedite Trial Because Her Election Contest Was Not Timely (i.e. Prematurely) Filed.

In her Opposition, Contestant states that counsel for Defendant previously asserted that "there is no need to hold an expedited hearing prior to the General Election, as there will be a

remedy of nullifying the results of the primary election .... " (Contestant's Opposition, p. 9,lns.

10-13 (empahsis added).) This is simply untrue.

On July 1, 2010, Contestant applied to this Court ex parte for an order expediting a

hearing on the merits in the present matter. The Court denied her request.

As shown by the transcript of the proceeding, which Contestant has included with her

Opposition, counsel for Defendant never asserted that there was no need for the matter to be

heard before the General Election. In fact, the transcript shows just the opposite. Counsel for Defendant actually argued that setting an election contest hearing before the formal certification

of the results of the June 8, 2010 Primary Election was untimely and therefore would not resolve

Contestant's issues. In addition, counsel for Defendant stated that proper timing for elections

contests is after the formal celiification of the primary election results, not before:

[MR. HILDRETH:]

3 AND BASICALLY WHAT THE ELECTIONS CODE STIPULATES

4 IS THAT THE CERTIFICATION GOES FORWARD, BUT THAT IF THE-- 5 IF THE FRAUD OR WHATEVER IT IS IS PROVEN, THAT A NEW

8

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

27 Reviewing the four comers of Contestant's Election Contest, it is clear that Contestant is

28 requesting only that Defendant be declared "not qualified and not eligible for certification of

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Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings

6 CERTIFICATE OF ELECTION IS ISSUED. SO THE CERTIFICATION IN 7 THIS CASE CAN ABSOLUTELY GO FORWARD.

8 BUT IF MS. TAITZ IS SOMEHOW ABLE TO PROVE UP HER

9 CLAIMS, THAT A NEW CERTIFICATE OF ELECTION WOULD BE ISSUED

10 TO THE, QUOTE, UNQUOTE, WINNER OF THE PRIMARY ELECTION. AND 11 SO THAT IS UNDER THE ELECTIONS CODE. AND I THINK BASED ON

12 THAT, MS. TAITZ DOESN'T MEET THE STANDARD FOR A TRO.

13 IN OTHER WORDS, THERE IS NO REPARABLE HARM TODAY

14 AS WE ALL SIT HERE. AND, YOU KNOW, SHE DOES HAVE A LEGAL

15 REMEDY THAT IS ADEQUATE TO HER, WHICH IS PROVIDED UNDER THE 16 ELECTIONS CODE. IT IS DIVISION 16 WHICH IS ENTITLED

17 "ELECTION CONTESTS."

6 7 8 9

(Transcript of Ex Parte Proceedings, Case No. 30-2010-00381664, Hon. Geoffrey T.

Glass (July 1, 2010), Page 18, Lines 3-17.)

Section 16421 of the Elections Code provides that an election contest affidavit "shall be filed in the office of the clerk of the superior court having jurisdiction within five days after [] the completion of the official canvass .... " (Cal. Elec. Code, § 16421 (emphasis added); see also Cal. Elec. Code, § 354 ['" Shall is mandatory and 'may' is permissive." (emphasis added)].) Thus, the

time for filing an election contest affidavit co~ences only after the board of canvassers has declared the result. (Cal. Elec. Code, § 16421; and see Miller v. Superior Court of Kern County (App. 1914) 25 Cal.App. 607.) In addition, Elections Code section 16500 (also contained in

Division 16) provides that elections contests must be heard by a court within 10 to 20 days after the timely filing of the contest.

As Defendant has previously established, Contestant filed her Election Contest on June 17,2010 - more than one month before the results were formally certified by the Secretary of State on July 18,2010. In addition, Contestant failed to seek a hearing on the merits of her

Election Contest within the time allowed under the Elections Code

As a result of the foregoing, Contestant's Elections Contest was untimely filed, was not timely resolved, and is therefore invalid and moot.

ID. CONCLUSION

9

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By:~t2~·~/I---=--_

CHARLES H. BELL, JR. BRIAN T. HILDRETH

1 votes" and "declaratory relief deeming Dunn disqualified to hold office in California due to

2 violation of [Elections Code] § 185012." These requests quite simply comprise an election

3 contest -- which was untimely filed and is now moot.

4 Contestant also requests monetary damages based on "fraud." However, Contestant has

5 not and cannot properly allege a cause of action for fraud upon which relieve may be granted

6 because the required factual elements are not present.

7 Based on the foregoing, Defendant Damon Dunn hereby requests that this Court grant his

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

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

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

11

12 Dated: MarchL,2011

BELL, McANDREWS, & HIL TACHK, LLP

Attorneys for Defendant, DAMON DUNN

2Defendant notes that section 18501 applies to "public officials," not candidates for elective office. Contestant also cites to Elections Code section 18002, which also relates only to public officials, and not candidates.

10

Reply to Contestant's Opposition to Defendant's Motion for Judgment on the Pleadings