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

ATTORNEYS AND COUNSELORS AT LAW ,^_


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4SS CAPITOL tvlALL. S U I T E SOI

SACRAMENTO CALIFORNIA 9SSI4

10 J U N - 2 Pn 2: 18
OI6) 4-42-7757
FAX Oie) 442-7759 I c f M prsorrcc •'-•'
CHARLES H BELL J R TSZ\ S E V E N T H S T R E E T , S U I T E aos
COLLEEN C MCANDREWS SANTA M O N I C A , CA 9 0 4 0 I
THOMAS W HILTACHK OIO) 4SS-I40S
BRIAN T HILDRETH FAX I3IO) 260-2666
A S H L E E N TITUS > VITWW bmhIaW COITl

PAUL GOUGH
OF C O U N S E L
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

2068 01
EXHIBIT A
RPCESVED A^8D F*ir|5e
r ^ f a ^ J r ' - Q ~ ^ a SeCfBtaryCTow>t° CANDIDATE INTE>ITION STATEMENT
Candidate intention Statement Type^Prinl^inJnk. ' " ^ ^ o W s t e ^ obCpSMP'« CALIFORNIA
FORM
^OV 1 3 2009 For Official Use Only

Checl< One: [xj Inrtial • Amendment (Expiam)


I'ei^att'ry-of state

1. Candidate Information: ^7.2."T^(


NAME OF CANDIDATE I t j s t Ftrst M/cWte ImUal) DAYTIME TELEPHONE NUMBER FAX NUMBER (opllonaO E-MAIL (optional)

Dunn, Damon J . ( 949 ) 660-0716 i )


STREET ADDRESS CITY STATE ZIP C O D E

2070 Business Center Drive, Suite 140 Irvine CA 92612


OFFICE SOUGHT (POSITION TITLE) AGENCY NAME DISTRICT NUMBER, tl applicable • NON-PARTISAN
Secretary of State State of California n/a PARTY Republican
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 Primary/general election Special/runoff election


(Year or BeeUon) (Year of election)

(Oteck one tiox)

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
h^"
Amendment
O I did not exceed the expenditure ceiling in the primary or special election held on- / / and 1 accept the voluntary expenditure ceiling for the
general or speciai run-off election

(Klark ll applicable)
ti
U On L J. _ I contributed personal funds in excess of the expenditure ceiling for the election stated above.

3. Verification:
I certify under penalty of perjury under the laws of the State of California gregoing is'lRigjgnd con-ect.

Executed on , 11/05/09 „,„„,„,„


Signature ^
(month, day. year) (Candidate)

FPPC Form 501 (January/05)


FPPC Toll-Free Helpline: 866/ASK-FPPC (866/275-3772)
EXHIBIT B
OFFICIAL FILING FORM
UECLARATION OF CANDIDACY
NEAL KELLEY
REGISTRAR OFJ (Elections Code Sections 200,8020.8040)

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
•^ _ i ^ ry \A/^rtsA, j;ov W v^
Print Your Name for Use on the Ballot
if preferring no
designaton-

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: .St S { M'-Y.Ug.l 5 Oy^ Uvvx •( l o % u)e^-t:


(Required)
X-ro\\A c CA
Slate
^ ^ C. I. X .
Zip Code
Citv

D Business Address: /J/L


t

aty Slaie ZrpCodc

Q Mailing Address: S>C \AA<- ^? ^ e* iJQ J t

Ci'y Stilc ZipCode

^.r Telephone: i^W]) ,q:iy c^j^s ,(__.). S^ivw C


_ ( . ' Ares Cofle Dav
Day Area Coae evening

"r = 2^ - ;•>>;•• F A X : ( )_ E-Mail: Q g ^ w i Q w ^-i < J A W


VW^ QQ
- AA Q
Q -- <-*v\V^ 'Cov\/\
AreaCode

%3>:^'\'% Official Website: i/^L-^U-). 0 « \ M . o ^ ^ cSLivA/v. • C o W ^

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 DDC

iLO/OLO d i6L0# 22 SO G202/iL/iO


07/17/2029 05 28 #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
Dafe
te Signature of Candidate

State of California } ss.


County of Orange }
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 day of _ /^C, , 2010.

NEAL KELLEY, Registrar of Voters By M i 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 ~^ ~ ~
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 } ss. Signature of Candidate


County of Orange }

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 ^ , 2010.

rJEAL KELLEY, Registrar of Voters By_ , Deputy


»»»»»»""•««***,
Certificate as to Candidate's Political Party Affiliation
(Eleettom Code Sedion SOOI)

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 **»»»»i!«B*iiW i d l n o b n t
Dated this IQ^ day of Ms^^L ,2010.
Pnor Registration NEAL KELLEY,
Party Affiliation Dates Registrar of Voters 3s;:;.,

By. ., Deputy
DerJarstion of Candidacy - Partisan 20io
A'l code sectior' refe'enrea are to the California Elections Code unless stated otherwise