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's eligibility for the office of the President of the nited States." (CT 685.) Appellants prayed for em order "barring the [Secretary of State] from both certi fying to the Governor the names of the California Electors, and from transmitting to each Presidential ~lector a Certificate of Election, until such documentary proof is produced and verified' and "barring the California Electors from signing the Certificate of Vote until such documentary proof is produced and verified." (CT 678.) According to Appellants, absent th requested relief, "[a]n unprecedented and looming constitutional crisis awaits." (CT 680.)
Appellants brought no motion to obtain any judicial order before the Secretary of State certified the 2008 California Electors, before the Electors cast their votes, or before President Obarna and Vice President B iden were sworn into office.
In due course, all Respondents either demurred to the Petition or moved for judgment on the pleadings. In these various court filings, Respondents pointed out that the Petition failed to identify any legal duty on the part of any Respondent, and that the Petition had long since become moot. (CT 251-69' 321-89.) Appellants responded by filing a First Amended Petition, which repeated nearly all the factual allegations of the prior pleading and made no attempt to addres the absence of any legal
STANDARD OF REVIE\V
The standard of review all appeal from a trial court decision
sustaining a demurrer is, of course, de novo.:' Curcini v. CU1II1(V o]
Alameda, 164 Cal. App 4th 629, 637 (2008). Although the reviewing court
must "treat the demurrer as admitting all material facts properly pleaded," it
does not assume the truth of "contentions, deductions or conclusions of fact
or law." Evans v. City of Berkeley, 38 Cal.4th 1,6 (2006). Appellants bear
the burden of "show[ingJ either the demurrer was sustained erroneously or
that to sustain the demurrer without leave to amend constitutes an abuse of
discretion." Stenson v, Brown, 49 Cal. App, 3d 812, 814 (1975). The trial
court's decision sustaining the demurrer must be upheld "if it is correct on
3 Appellants also claim that de novo review is appropriate because this case involves "[c]onstitutionaJ issues." (Appellants' Opening Brief ("ADB") 9; see also AOB 1-2 (stating that case concerns "critical Constitutional issue of whether OBAMA has met the eligibility requirements to serve as President of the United States").) While Appellants are correct about the standard of review, they aremistaken as to the reason. This lawsuit is not about the "natural born citizen" clause or any other portion of the United States Constitution, and the First Amended Petition contains no constitutional claim. Instead, this writ action is premised on the notion that the California Secretary of State and California's Democratic Party eJectors have, a mandatory statutory duty to launch an investigation into the qualifications for office of the Democratic Party's presidential nominee. The Superior Court properly held that no such duty exists, and that the suit, in any event, suffers from numerous jurisdictional defects. Appellants have identified no reason on appeal to disturb this ruling.
legnl authority. (CT 676 ("OBAMA has failed to demonstrate that he is a 'natural hom'citizen."), 67S ("ft is incumbent on the candidates 10 present the necessary documentation confirming his or her eligibility, but, to date, for this past election, OBAMA has failed to do 80.").) The Superior Court correctly ruled that these allegations with respect to the President and Vice President contain no basis for imposing any duty on either official. (CT 1 I 39~40); San Diego Cotton Club v. Stare Bd. oj Equalization, 139 Cal. App. 655, 658 (1934) ("To furnish any basis for the relief sought the petition for a writ of mandate must show on its face that the respondents are under some duty to do what the petition asks that they be required to do.").
It is unclear whether Appellants challenge this ruling on appeal.
They direct no arguments to this portion of the ruling below, and they still do not seek any relief as to either federal official. Moreover, to the extent Appellants wish to have their First Amended Petition read as seeking prospective relief as to future elections, they have failed to explain how the candidates in the 2008 election are proper parties. The Superior Court's ruling that the First Amended Petition fails to state a cause of action as to the President and Vice President should be affirmed.
B. The California Electors Had No Duty to Investigate the Qualifications of the Presidential Candidate for Whom They Were Legally Bound to Vote.
The Cali I(JI'n ia Electors had no discretion in casting their 2008
electoral votes. Like many other states,S California requires its presidential
electors to vote for their party's nominee. Cal. Elec. Code § 6906 (West
2010) ("The electors ... shall vote by ballot for that person for President
and that person for Vice President of the United States, who are,
respectively, the candidates of the political party which they represent
'" ."); cf Ray v. Blair, 343 U.S. 214, 231 (1952) (affirming
constitutionality of political party rule requiring electors to support party'
candidate). Indeed, California Elections Code section 6906 was binding on
5 At least twenty-seven other slates, as well as the District of Columbia, bind electors via either state law or political party pledges, or both, to vote for a particular candidate. (Ala. Code § ] 7-14-3 I (20 (0); Alaska Stat. § 15.30.090 (2010); Colo. Rev. Stat. Ann. § 1-4-304(5) (West 2010); Conn. Gen. Stal. Ann. § 9-176 (West 2010); Del. Code Ann. tit. 15, § 4303(b) (2010); D.C. Code § 1-1001.08(g)(2) (2010); Fla. Stat. Ann. S ] 03.021 (1) (West 2010); Haw. Rev. Stat. § 14-28 (2010); Me. Rev. Slat. Ann. til. 21-A, § '805(2) (2010); Md. Code Ann., Elec. Law ~ 8-S05(c) (West 2010); Mich. Compo Laws Ann. § 168.47 (West 2010); Miss. Code Ann. § 23-15-785 (2010); Mont. Code Ann. § 13-2S-104(c) (2010): Mass. Gen. Laws ch. 53, § 8 (2010); Nch. Rev. Stat. §§ 32-714,298.050 (2010); N.M. Stat. § 1-15-9 (2010); N.C. Gen. Stat. § 163-212 (2010); Ohio Rev. Code Ann. § 3505.40 (West 2(10); Okla. Star. lit 26, § 26-10-102 (2010); Or. Rev. Stat. § 248.355(2); S.C. Code. Ann. § 7-J9-80 (2010); Tenn. Code Ann.§ 2-15-104(c.) (2010); Utah Code Ann. ~ 20A-13-304 (2010); vi. Stat. Ann. tit ]7, § 2732 (2010); Va. Code Ann. § 24.2-203 (20]0); Wash. Rev. Code Ann. § 29A.S6.320 (2010); Wis. Stat. Ann. § 7.75(2) (West 2010); \~lyO. Stat. Ann. 922-19-108 (2010).
4th 43, 59 (2005); California Water & Tel. Co. v. County ofLos Angeles, 253 Cal. App. 2d 16,22 (1967).
And, of course, a writ of mandate will not lie unless there is a clear and present ministerial duty. Lungren v. Deukmejian, 45 Cal. 3d 727, 731- 32 (1988) (' Mandate will not lie unless ... the respondent has a present duty to perform the acts applicant seeks to compel."); American Fed'n of State, County and Mun. Employees v. Metropolitan Wafer Dist., 126 Cal. App. 4th 247, 297 (2005). It is well established that a "writ will not be granted merely in anticipation that the party will refuse to perform the duty when the time comes." Brandt v. Ed. of Supervisors ofMadera County, 84
Cal. App. 3d 598, 60] (1978).
There is no present duty in any Respondent with respect to future elections and therefore no basis for a writ. This Court cannot now know who future candidates will be, what kinds of controversies mayor may no! arise with respect to their eligibility for office, or how the Secretary of State will handle any controversies - in short, what "actual set of facts" will arise for "the issues [to] be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." Pac. Legal Found, 33 Cal. 3d at 170: see also PG&E COljJ. v. Pub. Utils. Comm '/I, 118 Cal. App. 4th 1174, 1216 (2004). Furthermore, in the absence of a ripe controversy, these Appellants, who have pinned their claimed standing 011
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