B E L L , M C A N D R E W S 8e H I L T A C H K , ' ^r LliJR5

> i ATTORNEYS 4SS AND COUNSELORS tvlALL. S U I T E CALIFORNIA AT SOI 9SSI4 LAW ,^_ CAPITOL SACRAMENTO

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CHARLES H BELL J R COLLEEN C MCANDREWS THOMAS W HILTACHK BRIAN T HILDRETH A S H L E E N TITUS PAUL GOUGH OF C O U N S E L

4-42-7757

10 J U N - 2 Pn 2: 18
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TSZ\ S E V E N T H S T R E E T , S U I T E aos SANTA M O N I C A , CA 9 0 4 0 I OIO) 4SS-I40S FAX I3IO) 260-2666 VITWW bmhIaW COITl

FAX Oie) 442-7759

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June 2, 2010 BY HAND DELIVERY The Honorable Shelleyanne W.L Chang Judge ofthe Superior Court of California County of Sacramento Department 54 800 9"' Street Sacramento, CA 95814 SPECIAL APPEARANCE Re: Barnett v. Dunn, et a l . Case No. 34-2010-00077415 Defendant Damon Dunn's Opposition to PlaintifFs ExParte Application

Dear Judge Chang. Through his counsel, Defendant Damon Dunn ("Dunn") makes a speciai appearance in opposition to the ExParte Application filed by Plaintiffin the above-entitled, matter. Plaintiff failed to properly notice Mr. Dunn ofthe instant Application. In addition, Plaintiffs declaration m support of her ^x Parte Application makes no mention as to her notice of Mr Dunn regarding the present Application. Should the Court hear the Application on the merits, Mr. Dunn wishes the Court to consider the following opposition. Plaintiff Pamela Bamett seeks truly extraordinary relief. Plaintifffiled her underlying Complaint in this matter on May 10, 2010. She purportedly made service on all parties, including Mr. Dunn, by May 18, 2010. Now, some three weeks after filing, and two weeks after alleged service, Plaintiffseeks Ex Parte permission from this Court to have her matter heard on the merits in just two days. I. Plaintiff Has Not Shown "Good Cause" for Ex Parte Relief.

However, Plaintiffhas failed to satisfy the most basic (and most critical) requirements for seeking exparte relief. Most notably Plaintiffhas failed to establish "good cause" for this Court to grant exparte relief shortening time:

2068 01

The Honorable Shelleyanne W.L. Chang Judge of the Superior Court of California County of Sacramento June 2, 2010 Page 2 of4

Judges are usually more cautious about shortening time for notice than about extending time. An application for an order shortening time must be supported by a declaration showing "good cause" for the order.
***

The applicant must additionally show by declaration that the lack oftime IS due to causes beyond the applicant's control, or other good reasons for shortening time. (R Weil & I. Brown, Caiifomia Practice Guide, Civil Procedure Before Trial (The Rutter Group 2005), § 9:364.) Weil & Brown also define what "good cause" means in the context of exparte relief: Inherent in "good cause" is the requirement that the applicant not be at fault; / e , the problem at hand must be attributable to events which the applicant could not have reasonably foreseen or controlled. {Id at § 9:358.) Plaintiffhas failed to meet this basic "good cause" standard. Plaintiff apparently intentionally delayed until the 11"^ hour to bring her underlying action and the present Ex Parte Application. Defendant Dunn filed his candidate Intention Statement (Form 501) on November 5, 2009 (some seven months ago). (See Exhibit A hereto.) Mr. Dunn subsequently filed his Declaration of Candidacy on March 10, 2010. (See Exhibit B hereto.) Yet while the clock ticked, Plaintiff apparently dawdled ~ for months ~ finally filing her lawsuit on May 10, 2010 (less than 30 days before the Statewide Direct Primary Election). Plaintiff then waited another week before actually serving her Complaint on Mr. Dunn. Notably, in between the time Plaintiff filer her lawsuit and her noticing ofthe present Ex Parte Application, Plaintiffnever informed Mr. Dunn that she would seek an expedited hearing on the merits. Plaintiff also never reached out to opposing counsel seeking to meet-and-confer regarding a stipulated briefing schedule to have the matter heard before the June 8, 2010 election. Nor did she ever apparently notify the Court that (in her opinion) a shortened briefing schedule was necessary in this matter. Now with just days remaining before the election, Plaintiffseeks to have Mr. Dunn thrown off the ballot - and wants to give Mr. Dunn two days to prepare an opposition to Plaintiffs 18-page Complaint alleging five separate causes ofaction.

2068 01

The Honorable Shelleyanne W.L. Chang Judge ofthe Superior Court ofCalifomia County of Sacramento June 2, 2010 Page 3 of4

There is patently no basis for exparte relief here. Whatever time problems she now claims. Plaintiff created them by her own multiple (and compounding) delays H. Plaintiffs Ex Parte Application is Barred by the Doctrine of Laches.

Granting Plaintiffs Ex Parte Application also would cause significant inequitable results not allowed by the doctrine of laches. Laches is an equitable defense to the enforcement of stale claims. {Marriage of Garcia v. Garcia (2003) 111 Cal App 4th 140 (2003), see also Wells Fargo Bank v Bank ofAmerica (1995) 32 Cal.App.4th 424, 439 In Callfomia, the doctnne may be applied "where [1] the complaining party has unreasonably delayed in the enforcement ofa right, [2] causing prejudice to the other party and [3] rendering the granting of relief inequitable." {Marriage of Garcia v. Garcia, 111 Cal.App.4th 140.) Substantial prejudice will result against Defendant Dunn ifhe is forced to defend Piamtiffs lawsuit in just two-day's time. He is a candidate for statewide office in the fmal days ofa contested election campaign for the office of Secretary of State. To force him to devote campaign funds and resources, and his own personal time, to defend Plaintiffs lawsuit in the waning days ofthe election this lawsuit is likely an infnngement ofhis First Amendment rights by Plaintiff. HL Plaintiff Has Not Met Significant Procedural Requirements for Ex Parte Relief. Finally, Piaintiffs Ex Parte Application suffers from significant procedural deficiencies that require this Court to deny the Application. Most notably, the Sacramento Superior Court Local Rules state that exparte applications must include "a written supporting declaration, statmg whether opposing party is represented by counsel, whether that party has been contacted and has agreed to the requested order, or why the order should be issued without such notice." (Sacramento Superior Court Local Rules ofCourt, Rule 2.04.) The Local Rules further state that the "adequacy ofthe application for temporary relief will be determined on the papers submitted." {Id.) Ifthe application is deemed adequate, "the court may allow supplemental argument, either oral or written, by either party." (Id) Here, Plaintiffs papers are clearly inadequate, and Piaintiffs Application should be denied without oral argument. Quite simply, Plaintiffdid not provide this Court with a declaration stating whether opposing party is represented by counsel, or whether that party has been contacted and has agreed to the requested order.

2068 01

The Honorable Shelleyanne W.L. Chang Judge ofthe Superior Court ofCalifomia County of Sacramento June 2, 2010 Page 4 of4

In addition, under the Cahfomia Rules ofCourt, no application for exparte relief may be granted unless the applicant provides a declaration showing compliance with the notice requirements of CRC 3 1204(b), which states: (b) Declaration regarding notice An ex parte application must be accompanied by a declaration regarding notice stating: (1) The notice given, includmg the date, time, manner, and name ofthe party informed, the relief sought, any response, and whether opposition IS expected and that, within the applicable time under mle 3.1203, the applicant informed the opposing party where and when the application would be made; Plaintiffs Ex Parte application fails to comply with the Rules ofCourt and, thus. This Court must deny her Application. Thank you for your consideration ofthe foregoing. Very tmly yours,

^

^

Bnan T. Hildreth Altorneyfor Defendant, DAMON DUNN BTH: sd

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EXHIBIT A

RPCESVED A^8D F*ir|5e
Candidate intention Statement
Type^Prinl^inJnk. ' " ^ ^ o W s t e ^ obCpSMP'«
r ^ f a ^ J r ' - Q ~ ^ a SeCfBtaryCTow>t° CANDIDATE INTE>ITION STATEMENT

^OV 1 3 2009
Checl< One: [xj Inrtial • Amendment (Expiam)

CALIFORNIA FORM
For Official Use Only

I'ei^att'ry-of state
1. Candidate Information:
NAME OF CANDIDATE I t j s t Ftrst M/cWte ImUal) DAYTIME TELEPHONE NUMBER FAX NUMBER (opllonaO E-MAIL (optional)

^7.2."T^(
( 949 ) 660-0716
CITY

Dunn, Damon J .
STREET ADDRESS

i

)
STATE ZIP C O D E

2070 Business Center Drive, Suite 140
OFFICE SOUGHT (POSITION TITLE) AGENCY NAME

Irvine State of California n/a

CA

92612
• NON-PARTISAN PARTY Republican

DISTRICT NUMBER, tl applicable

Secretary of State
OFFICE JURISDICTION
0 State (ComptetaPam)

n City

County

Multi-County

(Name ol MulU-County Junsdidion]

(Year of Bection)

2. State Candidate Expenditure Limit Statement:
(CalPERS candidates, judges, j u d t a a l candidates, a n d candidates for local offices are not required to complete Part 2 )

2010
(Year or BeeUon) (Oteck one tiox)

Primary/general election

Special/runoff election
(Year of election)

13 I accept the voluntary expenditure ceiling for the election stated above n I do not accept the voluntary expenditure ceiling for the election stated above Amendment O I did not exceed the expenditure ceiling in the primary or special election held ongeneral or speciai run-off election / / and 1 accept the voluntary expenditure ceiling for the

h^"

(Klark ll applicable)

ti L J. _ I contributed personal funds in excess of the expenditure ceiling for the election stated above.

U On

3. Verification:
I certify under penalty of perjury under the laws of the State of California
Executed on ,

gregoing is'lRigjgnd con-ect. ^
(Candidate)

11/05/09
(month, day. year)

„,„„,„,„ Signature

FPPC Form 501 (January/05) FPPC Toll-Free Helpline: 866/ASK-FPPC (866/275-3772)

EXHIBIT B

OFFICIAL FILING FORM

UECLARATION OF CANDIDACY
(Elections Code Sections 200,8020.8040)

NEAL KELLEY
REGISTRAR OFJ

DATEISSUFD

REGISTRAR OF VOTERS USE ONLY

• - - CONTEST (D; 1042 ' V;,';,'1"CAMDJQATE.1D 1

I hereby declare myself a Republican Party candidate for nomination to the office of Secretary of State, to be voted for at the Statewide Primary Election to be held June 8, 2010 and declare the following to be true: -.^
• — ^ ^ ^

My name is: _

sJ_J) ^^ ^^ <, y,,

<d3 tA\AVN

I request my name and occupational ballot designation to appear on the ballot as follows:
Candidate inibals if preferring no designaton-

• _ i ^ ry \A/^rtsA, ^ ov W v^ Print Your Name for Use on the Ballot

j;

Pnnt Occupat'onal Ballot Designation Requested
Note A ballot designation is optionai If one is requested a completed BALLOT DESIGNATION WORKSHEET must be submitted. If no ballot designation is requested, write in the word "NONE" gnd initial in the box (Elections Code §§ 13107, 13107 3)

Q ^ e s i d e n c e Address: (Required)
Citv

.St S {

M'-Y.Ug.l 5 Oy^
Slate

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Zip Code

X-ro\\A c
D Business Address:
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CA

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Mailing Address:
Ci'y

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Stilc ZipCode

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_ ( . ' Ares Cofle Dav Day

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E-Mail: Q g ^ w i Q w ^-i < J A W W QA Q-- <-*v\V^ V^Q- AQ 0 « \ M . o ^ ^ cSLivA/v. • C o W ^

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AreaCode

%3>:^'\'% Official Website:

N01^i33^f«2Sepretary of State will publish one of the above addresses in the certified list of candidates and on the SOS'website. Please cbeck the appropriate box above to indicate which address you wish to use for this purpose, if no box is selected, the maiiing address will be used. I meet the statutory and constitutional qualifications for this office (including but not limited to cibzenship, 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
iLO/OLO d i6L0#

DDC

22 SO

G202/iL/iO

07/17/2029

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#0198 P 008/017

If nominated I will accept the nomination/office and not withdraw. I deciare under penalty of perjUQyjnder the laws j ^ e State of California that the foregoing is true and correct.

3 f lOfzo te Dafe
State of California County of Orange } } ss.

Signature of Candidate

Subscribed and swom to before me this M ^ ^

day of

M^-tA^

2010.

Notary Public (or other official) Examined and certified by me this /pyv NEAL KELLEY, Registrar of Voters day of _ By /^C, M i , 2010. Deputy

WARNING Evety p c i W i edi^j on behalf of a eanifeiate is gully of a rtiademeanof >^o tfeiiOerstely fste to file at Ihc proper bene aiid m me proper pisce any dedsution of ranoiflacy lo Ws/her poiscs=ion wluch i9 en«il«i to bk titx) yMer ih9 provisions of thu Bixsonn Code (Elections Code Seetion 1620^)

OATH OF OFFICE

~^

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~

I, DAMON DUNN, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Califomia against alt enemies, foreign and domestic; ftiat I witl bear true faith and allegiance to the Constitution ofthe United State$ and the Constitution of the State of Califbmia; that I tal<e this obligation freely, vflfhout any mental reservation or purpose ot.eyasion, and thaL' will well and faithfully discharge the duties upon which I am about to enter State of Califomia County of Orange } } ss. Signature of Candidate

Subscribed and swom to before me t h i s _ J _ 0 ^ day of

f'^^-- ^

. 2010.

Notary Public (or other official) Examined and certified by me this ^ ^ ^ day of ^ By_ , 2010. , Deputy »»»»»»""•««***, Certificate as to Candidate's Political Party Affiliation
(Eleettom Code Sedion SOOI)

rJEAL KELLEY, Registrar of Voters

State of Calrfomia County of Orange

} }

ss.

I hereby certify that (1) at the time of presentation of this declaration and continuously for nof iess than three months immediately prior thereto, or for as long as he/she has been eligible to vote in the state, the above-named candidate is shown by his/her affidavit of registration, executed on j - l l - f d ' ^ . to be affiliated with the political party the nomination of which he/she seel^s, and (2) the candidate has not been registered as affiliated with any other political party for the twelve-month penod immediately preceding the filing of this declaration Dated this IQ^ day of Pnor Registration Party Affiliation Dates Ms^^L

**»»»»i!«B*iiW i d l n o b n t

,2010.
NEAL KELLEY, Registrar of Voters By. ., Deputy DerJarstion of Candidacy - Partisan 20io 3s;:;.,

A'l code sectior' refe'enrea are to the California Elections Code unless stated otherwise

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