BARNETT v DUNN - Special Appearance Letter - DefaultDMS

8/9/2019 BARNETT v DUNN - Special Appearance Letter - DefaultDMS

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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 , ' ^ LliJR f5 L nA T T O R N E Y S A N D C O U N S E L O R S A T L A W ,^_

4 S S C A P I T O L t v l AL L . S U I T E S O IS A C R A M E N T O C A L I F O R N I A 9 S S I 4

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BY HAND DELIVERYThe Hono rable Shelleyanne W.L ChangJudge ofth e Superior Court of CaliforniaCounty of SacramentoDepartment 54800 9"' StreetSacramento, CA 95814

SPECIAL APPEARANCER e: Barnet t v. Dun n, et al . C ase No. 34-2010-00077415Defendant 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 E xP ar te A pplication filed by Plaintiffin the above-entitled,matter. Plaintiff failed to properly notice Mr. Dunn ofth e instant Application. In addition,Plain tiffs declaration m support of her x Pa rte A pplication m akes no mention as to hernotice of Mr Dunn regarding the present A pplication.Should the Court hear the Application on the m erits, Mr. D unn w ishes the Court toconsider the following opposition.Plaintiff Pam ela Bam ett seeks truly extraordinary relief. Plaintifffiled herunderlying Complaint in this matter on May 10, 2010. She purportedly m ade service on allparties, including Mr. Dunn, by May 18, 2010. Now , some three weeks after filing, and

two weeks after alleged service, Plaintiffseeks Ex Part e permission from this Court tohave her m atter heard on the merits in just two days.I. Plaintiff Has Not Shown "Good Ca use " 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:

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The Honorable Shelleyanne W.L. ChangJudge of the Superior Court of CaliforniaCounty of SacramentoJune 2, 2010Page 2 of4

Judges are usually more cautious about shortening time for noticethan about extending time. An application for an order shorteningtime must be supported by a declaration showing "good cause " forthe order.* * *The applicant must additionally show by declaration that the lackoftime IS due to causes beyond the applicant's control, or othergood reasons for shortening time.

(R Weil & I. Brown, C aiifomia Practice Guide, Civil Procedure Before Trial (TheRutter Group 2005), 9:364.)Weil & Brown also define what "good cause" means in the context of exparte

relief:

Inherent in "good c ause" is the requirement that the applicant notbe at fault; / e , the problem at hand must be attributable to eventswhich the applicant could not have reasonably foreseen orcontrolled.{Id at 9:358.)Plain tiffhas failed to meet this basic "good cau se" standard. Plaintiff apparen tlyintentionally delayed until the 11"^ hour to bring her underlying action and the present ExPa rte A pplication. Defendant Dunn filed his candidate Intention Statement (Form 501) onNovem ber 5, 2009 (some seven months ago). (See Ex hib it A hereto.) Mr. Dunnsubsequently filed his Declaration of Candidacy on March 10, 2010. (See Exh ibit Bhereto.) Yet while the clock ticked, Plaintiff apparently dawd led ~ for month s ~ finallyfiling her lawsuit on M ay 10, 2010 (less than 30 days before the Statewide Direct PrimaryElection). Plaintiff then waited another week before actually serving her Com plaint on Mr.Dunn.Notably, in between the time Plaintiff filer her lawsuit and her noticing oft hepresent Ex Pa rte Application, Plaintiffnever informed M r. Dunn that she would seek anexpedited hearing on the me rits. Plaintiff also never reached out to opposing counselseeking to meet-and-confer regarding a stipulated briefing schedule to have the matterheard before the June 8, 2010 election. No r did she ever apparently notify the Court that(in her opinion) a shortened briefing schedule was necessary in this matter. Now with justdays 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 Plaintif fs 18-pageComplaint alleging five separate causes ofaction.

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The Honorable Shelleyanne W.L. ChangJudge ofthe Superior Court ofCalifomiaCounty of SacramentoJune 2, 2010Page 3 of4

There is patently no basis for ex pa rte relief here. Wh atever time problems she nowclaims. Plaintiff created them by her own m ultiple (and com pounding) delaysH. Plain tiffs Ex Parte Application is Bar red by the Doc trine of Lac hes.

Granting Plaintiffs Ex Pa rte Application also would cause significant inequitableresults not allowed by the doctrine of laches. Laches is an equitable defense to theenforcement of stale claims. {M arriage of Ga rcia v. Ga rcia (2003 ) 111 Cal App 4th 140(2003), see also Wells Fa rg o Bank v Bank ofAmerica (1995) 32 Cal.App.4th 424, 439 InCallfomia, the do ctnne m ay be applied "where [1] the complaining party has unreasonablydelayed in the enforcement ofa right, [2] causing prejudice to the other party and [3]rendering the granting of relief inequitable." {Marriage of Garcia v. Gar cia, 111Cal.App.4th 140.)

Substantial prejudice will result against Defendant Dunn ifhe is forced to defendPiam tiffs lawsuit in just tw o-da y's time. He is a candidate for statewide office in the fmaldays of a contested election cam paign for the office of Secretary of State. To force him todevote campaign funds and resources, and his own personal time, to defend Plain tiffslawsuit in the waning days ofthe election this lawsuit is likely an infnngem ent ofh is FirstAmendment rights by Plaintiff.HL Plaintiff Has Not Met Significant Proc edu ral Req uirem ents for Ex ParteRelief.

Finally, Piaintiffs Ex Pa rte A pplication suffers from significant proceduraldeficiencies that require this Court to deny the Application. Mo st notably, the SacramentoSuperior Court Local Rules state that ex pa rte applications m ust include "a writtensupporting declaration, statmg w hether opposing party is represented by counsel, whetherthat party has been contacted and has agreed to the requested order, or why the ordershould be issued without such notice." (Sacramento Superior Court Local Rules ofCourt,Rule 2.04.) The Local Rules further state that the "adequacy oft he application fortempo rary relief will be determined on the papers subm itted." {Id.) Ift he application isdeemed adequate, "the court may allow supplemental argumen t, either oral or written, byeither party." (I d)Here, Plaintiffs papers are clearly inadequate, and Piain tiffs Application should bedenied without oral argument. Quite simply, Plaintiffdid not provide this Court with adeclaration stating w hether opposing party is represented by counsel, or whether that partyhas been contacted and has agreed to the requested order.

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http://cal.app.4th/http://cal.app.4th/http://cal.app.4th/http://cal.app.4th/


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The Honorable Shelleyanne W.L. ChangJudge ofthe Superior Court ofCalifomiaCounty of SacramentoJune 2, 2010Page 4 of4

In addition, under the Cahfomia Rules ofCourt, no application for exparte reliefmay be granted u nless the applicant provides a declaration show ing com pliance with thenotice requirements of CRC 3 1204(b), which states:(b) Declaration regarding noticeAn ex parte application must be accompanied by a declarationregarding notice stating:(1) The notice given, includmg the date, time, manner, and nameofth e party informed, the relief sought, any response, and w hetheropposition IS expected and that, within the applicable time underm le 3.1203 , the applicant informed the opposing party where andwhen the application would be made;

Plaintiffs Ex Parte application fails to comply with the Rules ofCourt and, thus.This Court must deny her A pplication.Thank you for your consideration ofth e foregoing.

Very tmly yours,

^ ^Bnan T. HildrethAltorneyfor Defendant,DAMON DUNN

BTH: sd

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EXHIBIT A


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Candidate intent ion Statement

Checl< One: [xj Inrtial Amendment (Expiam)

RPCESVED A^8D F*ir|5er ^f a^ Jr '- Q~^ a SeCfBtaryCTow>t CANDIDATE INTE>ITION STATEMENTType^PrinlînJnk. ' " ^ o W s t e ^ obC pSM P'

ÔV 1 3 2009CALIFORNIAFO RM

I 'eiâtt 'ry-of stateFor Off ic ia l Use Only

1 . Candidate Information:NA M E OF CA NDIDA TE I t j s t F t r s t M/cWte ImUal)Dunn, Damon J.

D A Y T I M E T E L E P H O N E N U M B E R( 949 ) 660 - 0 71 6

FAX NUMBER (opllonaOi )

E-MAIL (optional)^ 7 . 2 . " T ^ (

S T R E E T A D D R E S S

2070 Business Center Drive, Suite 140CITY

IrvineS TA TE

CAZ I P C O D E

9 2 6 1 2OFFICE S OUGH T (P OS IT ION T ITL E )Secretary of State

A GE NCY NA M EState of California

DISTR ICT NUM BER , t l app licab len/a

NON-PARTSANPARTY Repu bl ic an

OFFICE JURISDICTON0 S t a t e ( C o m p t e t a P a m )n City County Multi-County (Name ol MulU-County Junsdidion] (Year of Bection)

2. State Candidate Expenditure Limit Statement:(Ca lPER S cand idates, judge s, jud t aa l cand idates, an d cand idates for loca l o ff ices are not r e q u i r e d to comple te Part 2 )

2010(Year or BeeUon) Primary/general election (Year of election) Special/runoff election

(Oteck one tiox)13 I accept the voluntary expenditure ceiling for the election stated aboven I do not accept the voluntary expenditure ceiling for the election stated above

AmendmentO I did not exc eed the expenditure ceiling in the primary or spec ial election held on-general or speciai run-off election/ / and 1 accept the voluntary expenditure ceiling for the

h^

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

3. Verif icat ion:I certify under penalty of perjury under the laws of the State ofCalifornia

1 1 /0 5 /0 9 , , , Êxecuted on , (month, day. year) Signaturegregoing is'lRigjgnd con-ect.

(Candidate)FPPC Form 50 1 (January/05)

FPPC Toll-Free Helpline: 866/ASK-FPPC (866/275-3772)


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EXHIBIT B


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OFFICIAL FILING FORM

NEAL KELLEYREGISTRAR OFJ

DATEISSUFD

UECL ARATION OF CANDIDACY(Elections Code Sections 200,8020.8040)

REGISTRAR OF VOTERS US E O N L Y - - CONTEST (D ; 1042' V; , '; , '1"CAM DJQ ATE.1D 1

I hereby declare myself a Republican Party candidate for nomination to the office of Secretary ofState, to be voted for at the Statewide Primary Election to be held June 8, 2010 and declare thefollowing to be true: - . ^ ^ ^ ^My name is: _ sJ_J ) ^^ ^^ C \AA


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07/17/2029 05 28 #0198 P 008/017

I f nom inated I w i l l accept the nom inat io n /o f f ic e an d not wi th draw .I deciare under penalty of perjUQyjnder the laws j ^ e State of California that the foregoing is true and c or re ct .

3 f l O f z oDafee Signature of CandidateState of California } ss.County of Orange }Subscribed and swom to before me th is M ^ ^ day of M -tA^ 2010.

Exam ined an d certified by me this /pyv day of _NEAL KELLEY, Reg is tra r o f Vo te rs By M i

Notary Public (or other official)/ ^ C , , 2 0 1 0 .

DeputyWARNING Evety pc iW i ed i^j on behalf of a eanifeiate is gul ly of a rt iademeanof >^o tfeiiOerstely fste to f i le at Ihc proper bene ai id m me proper pisce any dedsution of ranoif lacy lo Ws/herpoiscs=ion wluch i9 enili to bk titx) yMer ih9 provisions of th u Bixsonn Code (Elections Code Seetion 1620^)

OATH OF OFFICE ~ ^ ~ ~I, DAMON DUN N, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States andthe Constitution of the State of Califomia against alt enemies, foreign and domestic; ftiat I witl bear true faith andallegiance to the Constitution ofthe United State$ and the Constitution of the State of Califbmia; that I tal

BARNETT v DUNN - Special Appearance Letter - DefaultDMS

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