SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER

TIME: 09:48:00 AM JUDICIAL OFFICER PRESIDING: Charles Margines CLERK: Nanci Turner-Mitani REPORTER/ERM: None BAILIFF/COURT ATTENDANT: Richard A Simmer DATE: 11/07/2012 DEPT: C19

CASE NO: 30-2012-00582135-CU-PT-CJC CASE INIT.DATE: 07/09/2012 CASE TITLE: Taitz vs Obama CASE TYPE: Petitions - Other CASE CATEGORY: Civil - Unlimited EVENT ID/DOCUMENT ID: 71595874 EVENT TYPE: Under Submission Ruling

APPEARANCES

Having taken the matter under submission, the court now rules as follows: Petitioner/Plaintiff ("Petitioner") Orly Taitz seeks to have the court enter the defaults of the three remaining Defendants/Respondents ("Respondents" or "Respondent"), Barack Obama, Diane Feinstein, and Elizabeth Emken. Elections Code 16442 provides that the Affidavit of Elections Challenge ("Petition") must be personally served on the Respondent or sent by registered mail to his/her place of residence. Service efforts herein were as follows: Barak Obama: The proof of service indicates substituted service of an "ex parte hearing" (not the petition itself) at 950 Pennsylvania Avenue on 10/30/12 but then indicates that the office was closed and the documents were served by Fed-Ex the following day (with no proof of Fed-Ex delivery). Dianne Feinstein: The proof of service indicates personal service on 10/26/12 but then indicates that service was unsuccessfully attempted on defendant's secretary at a business address, then by facsimile to another business address, and then by regular mail (with no return receipt) to an unknown address. Elizabeth Emken: The proof of service indicates personal service on 10/27/12, but the space for indicating an address for service is left blank. A separate proof of service indicates that the petition and a "motion to compel" were personally served on 10/30/12 at an address 243 Morris Ranch Ct., Danville, CA. However, the proof of service is not signed by any process server.

Fr

ie

DATE: 11/07/2012 DEPT: C19

nd s

of

Th e

Fo
MINUTE ORDER

gb
Page 1 Calendar No.

ow

.c o

CASE TITLE: Taitz vs Obama

CASE NO: 30-2012-00582135-CU-PT-CJC

The court finds that none of the Respondents has been properly served. Consequently, Petitioner's request to have the Respondents' defaults entered is DENIED. The court notes the following additional procedural errors which are fatal to the Petition:

The first three foregoing errors are not capable of being cured. Accordingly, the court DISMISSES the Petition with prejudice. Court orders Clerk to give notice.

Fr

ie

DATE: 11/07/2012 DEPT: C19

nd s

of

Th e

1. Petitioner had a pre-election remedy pursuant to Elections Code 13314, which she failed to pursue. See Cummings vs. Stanley (2009), 177 Cal.App.4th 493; McKinney vs. Superior Court (2004), 124 Cal.App.4th 951 [challenge to candidate's eligibility for office must be brought before election, not after]. She is thus barred from seeking the instant remedy. McKinney, supra, at 957. 2. Even if Petitioner can challenge Mr. Obama's qualifications post-election, such challenge under 16100 is not ripe until the election has taken place and the Secretary of State has made a declaration of the result or post-canvass audit. See Elections Code 16401 [verification must be filed with 10 days "after the declaration of the result of the election"], 16404 [affidavit "shall specify" the date the official canvass was completed], 16421 [in primary election, affidavit must be filed within five days "after completion" of the official canvass]; Broadbent vs. Keith (1911), 15 Cal.App. 382 [premature filing does not impede electors right to file anew after election]. Here, the Petition was filed on July 9, 2012, a date which was four days before the declaration of the results of the election was filed. See the web site of the California Secretary of State at http://www.sos.ca.gov/elections/sov/2012-primary/pdf/2012-complete-sov.pdf Thus, the challenge herein was filed prematurely. If viewed as a proper post-election challenge, the instant Petition is barred by the doctrine of laches, as Petitioner has failed to effect proper service of the Petition for almost four months. 3. In addition, in the case of an office for which candidates are certified for the ballot by the Secretary of State (which includes Senators and the President see Elections Code 15375), only Sacramento Superior Court has jurisdiction to hear this challenge. Elections Code 16421. 4. Pursuant to Elections Code 16401, the Petition must be verified consistent with CCP 446, which requires Petitioner to attest to the facts by affidavit. Petitioner did not proceed by way of affidavit, which is a written statement verified by oath or affirmation (usually before a magistrate or notary public). CCP 2003; People vs. Griffini (1998), 65 Cal.App.4th 581, 587. CCP 2015.5 provides an alternative to affidavit; to wit a declaration. Petitioner's declaration does not comport with the requirements of CCP 2015.5.

Fo
MINUTE ORDER

gb

ow

.c o

m
Page 2 Calendar No.