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DANIEL C. CEDERBORG
County Counsel — State Bar No. 124260
SCOTT C. HAWKINS
Deputy County Counsel — State Bar No. 207236
FRESNO COUNTY COUNSEL
2220 Tulare Street, 5th Floor
Fresno, California 93721
Telephone: (559) 600-3479
Facsimile: (559) 600-3480 RECEIVED
11/24/2020 10:36 AM
Attorneys for COUNTY DEFENDANTS. FRESNO COUNTY SUPERIOR COURT
By: |. Herrera, Deputy
Superior Court Of The State of California
County of Fresno — Unlimited Civil Division
10 ELECTION INTEGRITY PROJECT Case No. 19CECG04296
CALIFORNIA, INC.,
11 JUDGMENT AFTER DEMURRER TO
12 Plaintiff, FIRST AMENDED COMPLAINT FOR
DECLARATORY RELIEF AND
13 Vv. VIOLATION OF THE CALIFORNIA
PUBLIC RECORDS ACT SUSTAINED
14 BRANDI ORTH, COUNTY WITHOUT LEAVE TO AMEND
CLERK/REGISTRAR OF VOTERS;
15 COUNTY OF FRESNO; and DOES 1-10,
inclusive, Action Filed: December 03, 2019
16 Trial Date: None Set
Defendants.
17 Hearing Held: November 19, 2020
18 Time: 3:30 p.m.
Dept: 403
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On November 19, 2020, the above-entitled Court adopted its Order on Tentative
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Ruling sustaining Defendant’ Demurrer to Plaintiff's First Amended Complaint without
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leave to amend. A true and correct copy of said Order is attached hereto and made a
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part here of by reference. On November 24, 2020, Defendants filed a request that the
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Court enter a judgment of dismissal with prejudice of Plaintiff's First Amended
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Complaint, pursuant to Code of Civil Procedure § 581, subd. (f)(1). Accordingly,
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Judgment Case No. 19CECG04296
1 IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff's First Amended
2 || Complaint is dismissed in its entirety, with prejudice, as to all Defendants, and that
3 judgment is hereby entered in favor of said Defendants. Each side shall bear their own
4 fees and costs.
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6 || Dated, , 2020.
7 Judge of the Superior Court
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Judgment Case No. 19CECG04296
SUPERIOR COURT OF CALIFORNIA- COUNTY OF FRESNO FOR COURT USE ONLY
Civil Department, Central Division
1130 "O" Street
Fresno, California 93724-0002
(659) 457-6316
TITLE OF CASE:
Election Integrity Project California, Inc. vs. Brandi L. Orth, County
Clerk/Registrar of Voters
CASE NUMBER:
CLERK'S CERTIFICATE OF MAILING 19CECG04296
| certify that | am not a party to this cause and that a true copy of the:
Minute Order & Tentative Ruling, dated 11/19/20
was placed in a sealed envelope and placed for collection and mailing on the date and at the place shown below
following our ordinary business practice. | am readily familiar with this court's practice for collecting and processing
correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited
in the ordinary course of business with the United States Postal Service with postage fully prepaid.
Place of mailing:
On Date:
Fresno, California
11/21/2020
93724-0002
Clerk, by Uhtrar Estela Alvarado
Deputy
Law Offices of Robert E. Williams Scott C. Hawkins
1455 Frazee Rd., Suite 500 Fresno County Counsel
San Diego, CA 92108 2220 Tulare St., Suite 500
Fresno, CA 93721
(1 Clerk's Certificate of Mailing Additional Address Page Attached
TGN-06b RO8-06 CLERK'S CERTIFICATE OF MAILING
SUPERIOR COURT OF CALIFORNIA - COUNTY OF FRESNO Entered by:
Civil Department - Non-Limited
TITLE OF CASE:
Election Integrity Project California, Inc. vs. Brandi L. Orth, County
Clerk/Registrar of Voters
Case Number:
LAW AND MOTION MINUTE ORDER 19CECG04296
Hearing Date: November 19, 2020 Hearing Type: Demurrer
Department: 403 Judge: Kristi Culver Kapetan
Court Clerk: Estela Alvarado Reporter/Tape: Not Reported
(Appearing Parties:
Plaintiff: No Appearance Defendant: No Appearance
Counsel: Steven Bailey & Robert Williams Counsel: Scott Hawkins & Rebekah Eropkin
(via court call) (via court call)
[ ] Off Calendar
‘
[ ] Continued
to []Setfor_ at __ Dept. for __
[X] Counsel for Plaintiff has requested Oral Argument. [X] Matter is argued and submitted.
[ ] Upon filing of points and authorities.
[X] The Demurrer to the First Amended Complaint without leave to amend is SUSTAINED. Prevailing parties are
to submit to the Court a Proposed Judgment dismissing the action as to the demurring defendants within 7 days
of service of this minute order.
[ ] Taken under advisement
{ ] Demurrer [ ] overruled [ ] sustained with __ days to [ ] answer [ ] amend
[X] Tentative Ruling becomes the order of the court. No further order is necessary.
[X] Pursuant to CRC 3.1312(a) and CCP section 1019.5(a), no further order is necessary. The minute order
adopting the tentative ruling serves as the order of the court.
[X] Service by the clerk will constitute notice of the order.
[X] See attached copy of the Tentative Ruling.
[ ] Judgment debtor ___ sworn and examined.
[ ] Judgment debtor ___ failed to appear.
Bench warrant issued in the amount of $__
JUDGMENT:
{ ]Money damages [ ] Default [ ] Other __ entered in the amount of:
Principal $__ Interest $__ Costs $__ Attorney fees $__ Total $.
{ ] Claim of exemption [ ] granted [ ] denied. Court orders withholdings modified to $__per__
FURTHER, COURT ORDERS:
[ ] Monies held by levying officerto be [ ] released to judgment creditor. [ ] returned to judgment debtor.
[ ] $__ to be released to judgment creditor and balance returned to judgment debtor.
[ ] Levying Officer, County of __, notified. [ ] Writ to issue
[ ] Notice to be filed within 15 days. [ ] Restitution of Premises
[ ] Other: __
CV-14b RO3-18
Bienen LAW AND MOTION MINUTE ORDER
(20) Tentative Ruling
Re: Election Integrity Project California, Inc. v. Orth et al.
Superior Court Case No. 19CECG04296
Hearing Date: November 19, 2020 (Dept. 403)
Motion: Demurrer to First Amended Complaint
Tentative Ruling:
To sustain the demurrer to the First Amended Complaint without leave to amend.
(Code Civ. Proc., § 430.10, subd. (e).) Prevailing parties to submit to this court, within
seven days of service of the minute order, a proposed judgment dismissing the action as
to the demurring defendants.
Explanation:
Pursuant to a California Public Records Act (""CPRA") request, plaintiff seeks access
(in-office review) to the following materials from the November 6, 2018 general election:
a The envelopes in which the mail-in ballots were submitted by voters;
b The envelopes in which the conditional ballots were submitted by voters;
Cc The envelopes in which the provisional ballots were submitted by voters;
and
d The signatures on the registration statements of voters who submitted either
mail-in, provisional, or conditional ballots for the November 6, 2018 general
election.
Plaintiff does not seek access to the ballots themselves. In the operative pleading,
plaintiff seeks declaratory relief regarding their right to access and review these materials.
Government Code, section 6258 provides, “Any person may institute proceedings for
injunctive or declarative relief or writ of mandate in any court of competent jurisdiction
to enforce his or her right to inspect or to receive a copy of any public record or class of
public records under this chapter.”
The CPRA sets forth various exceptions to disclosure of public records, including
“[rlecords, the disclosure of which is exempted or prohibited pursuant to federal or state
law ...." (Gov. Code, §6254, subd. (k).)
Elections Code, section 17301, subdivision (b), requires elections materials,
including “packages” containing polling place ballots, vote by mail ("VBM") and
provisional ballots, identification envelopes, spoiled/canceled ballots, as well as unused
VBM ballots, to remain unopened (essentially sealed) for 22 months from the date of an
election where candidates for federal offices are voted upon. These elections materials
are to remain unopened unless an election contest or criminal prosecution is
commenced within the 22-month period. (Elec. Code, § 17301, subdivision (c)).
Additionally, Elections Code section 15370 provides, “After ballots are counted
and sealed, the elections official may not open any ballots nor permit any ballots to be
opened except as permitted in Sections 15303 and 15304, or in the event of a recount.”
These statutes clearly provide that disclosure of the materials requested by plaintiff
is prohibited, as they are required by law to remain sealed in packages and unopened
until they are destroyed 22 months later, unless there is an election contest or criminal
prosecution. These “packages,” which specifically include the “identification envelopes”
for VBM and provisional ballots that plaintiff seeks in this action, cannot be produced or
made available for review pursuant to a CPRA request. (See Citizen’s Oversight, Inc. v.
Vu (2019) 35 Cal.App.sth 612, 618.)
In addition to the envelopes, plaintiff seeks to review the signatures on the
registration statements of voters. However, the affidavit of voter registration information
is to remain confidential. (Elec. Code, § 2194, subd. (a}(1).) The voter's home address or
signature are to be released only if the person's vote is challenged, but only to the
challenger, fo elections officials, and to other persons as necessary to make, defend
against, or adjudicate the challenge. (Ibid., subd. (c)(1).) Moreover, "The home address,
telephone number, email address, precinct number, or other number specified by the
Secretary of State for voter registration purposes, and prior registration information shown
on the affidavit of registration, is confidential and shall not be disclosed to any person,
except pursuant to Section 2194 of the Elections Code.” (Gov. Code, § 6254.4, subd. (a).)
There is no challenge to any person's vote, and accordingly plaintiff cannot view voter
signatures. Accordingly, this information is exempted from disclosure pursuant to
Government Code section 6254, subdivision (k).
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KCK He on
(Judge’ fAnitials) at
PROOF OF SERVICE
Election Integrity Project California, Inc., Plaintiff, v. Brandi L. Orth, County Clerk/ Registrar of Voters,
County of Fresno, and Does 1-10, inclusive.
Fresno Superior Court Case No.19CECG04296
|, Vincent Soliz, declare as follows:
| am a resident of the State of California, over the age of eighteen years, and
not a party to the within action. | am employed at the Fresno County Counsel’s Office,
2220 Tulare Street, Fifth Floor, Fresno, California, 93721.
On November 24, 2020, | served a copy of the within:
JUDGMENT AFTER DEMURRER TO FIRST AMENDED COMPLAINT FOR
DECLARATORY RELIEF AND VIOLATION OF THE CALIFORNIA PUBLIC
RECORDS ACT SUSTAINED WITHOUT LEAVE TO AMEND
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on the interested parties in said action addressed as follows:
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Robert E. Williams, Esq.
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Law Offices of Robert E. Williams
13 1455 Frazee Road, Suite 500
San Diego, CA 92108
14 rew@rewilliamslaw.com
Attorneys for Plaintiff, Election Integrity
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Project California, Inc.
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x by transmitting via Electronic Mail, the above listed document(s) to the Electronic
17 Mail address(es) set forth above on this date before 5:00 p.m. pacific daylight
time.
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19 by placing the document(s) listed above for mailing in the United States mail at
Fresno, California, in accordance with my employer's ordinary practice for
20 collection and processing of mail and addressed as set forth above.
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| declare under penalty of perjury under the laws of the State of California that
22 the foregoing is true and correct. Executed on November 24, 2020, at Fresno,
California.
Vv
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Vincent Soliz
25 Litigation Paralegal
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Proof of Service
Fresno Superior Court Case No. 19CECG04296
Preview
DANIEL C. CEDERBORG County Counsel — State Bar No. 124260 SCOTT C. HAWKINS Deputy County Counsel — State Bar No. 207236 FRESNO COUNTY COUNSEL 2220 Tulare Street, 5th Floor Fresno, California 93721 Telephone: (559) 600-3479 Facsimile: (559) 600-3480 RECEIVED 11/24/2020 10:36 AM Attorneys for COUNTY DEFENDANTS. FRESNO COUNTY SUPERIOR COURT By: |. Herrera, Deputy Superior Court Of The State of California County of Fresno — Unlimited Civil Division 10 ELECTION INTEGRITY PROJECT Case No. 19CECG04296 CALIFORNIA, INC., 11 JUDGMENT AFTER DEMURRER TO 12 Plaintiff, FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF AND 13 Vv. VIOLATION OF THE CALIFORNIA PUBLIC RECORDS ACT SUSTAINED 14 BRANDI ORTH, COUNTY WITHOUT LEAVE TO AMEND CLERK/REGISTRAR OF VOTERS; 15 COUNTY OF FRESNO; and DOES 1-10, inclusive, Action Filed: December 03, 2019 16 Trial Date: None Set Defendants. 17 Hearing Held: November 19, 2020 18 Time: 3:30 p.m. Dept: 403 19 20 On November 19, 2020, the above-entitled Court adopted its Order on Tentative 21 Ruling sustaining Defendant’ Demurrer to Plaintiff's First Amended Complaint without 22 leave to amend. A true and correct copy of said Order is attached hereto and made a 23 part here of by reference. On November 24, 2020, Defendants filed a request that the 24 Court enter a judgment of dismissal with prejudice of Plaintiff's First Amended 25 Complaint, pursuant to Code of Civil Procedure § 581, subd. (f)(1). Accordingly, 26 Mt 27 Mt 28 Mt Judgment Case No. 19CECG04296 1 IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff's First Amended 2 || Complaint is dismissed in its entirety, with prejudice, as to all Defendants, and that 3 judgment is hereby entered in favor of said Defendants. Each side shall bear their own 4 fees and costs. 5 6 || Dated, , 2020. 7 Judge of the Superior Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judgment Case No. 19CECG04296 SUPERIOR COURT OF CALIFORNIA- COUNTY OF FRESNO FOR COURT USE ONLY Civil Department, Central Division 1130 "O" Street Fresno, California 93724-0002 (659) 457-6316 TITLE OF CASE: Election Integrity Project California, Inc. vs. Brandi L. Orth, County Clerk/Registrar of Voters CASE NUMBER: CLERK'S CERTIFICATE OF MAILING 19CECG04296 | certify that | am not a party to this cause and that a true copy of the: Minute Order & Tentative Ruling, dated 11/19/20 was placed in a sealed envelope and placed for collection and mailing on the date and at the place shown below following our ordinary business practice. | am readily familiar with this court's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. Place of mailing: On Date: Fresno, California 11/21/2020 93724-0002 Clerk, by Uhtrar Estela Alvarado Deputy Law Offices of Robert E. Williams Scott C. Hawkins 1455 Frazee Rd., Suite 500 Fresno County Counsel San Diego, CA 92108 2220 Tulare St., Suite 500 Fresno, CA 93721 (1 Clerk's Certificate of Mailing Additional Address Page Attached TGN-06b RO8-06 CLERK'S CERTIFICATE OF MAILING SUPERIOR COURT OF CALIFORNIA - COUNTY OF FRESNO Entered by: Civil Department - Non-Limited TITLE OF CASE: Election Integrity Project California, Inc. vs. Brandi L. Orth, County Clerk/Registrar of Voters Case Number: LAW AND MOTION MINUTE ORDER 19CECG04296 Hearing Date: November 19, 2020 Hearing Type: Demurrer Department: 403 Judge: Kristi Culver Kapetan Court Clerk: Estela Alvarado Reporter/Tape: Not Reported (Appearing Parties: Plaintiff: No Appearance Defendant: No Appearance Counsel: Steven Bailey & Robert Williams Counsel: Scott Hawkins & Rebekah Eropkin (via court call) (via court call) [ ] Off Calendar ‘ [ ] Continued to []Setfor_ at __ Dept. for __ [X] Counsel for Plaintiff has requested Oral Argument. [X] Matter is argued and submitted. [ ] Upon filing of points and authorities. [X] The Demurrer to the First Amended Complaint without leave to amend is SUSTAINED. Prevailing parties are to submit to the Court a Proposed Judgment dismissing the action as to the demurring defendants within 7 days of service of this minute order. [ ] Taken under advisement { ] Demurrer [ ] overruled [ ] sustained with __ days to [ ] answer [ ] amend [X] Tentative Ruling becomes the order of the court. No further order is necessary. [X] Pursuant to CRC 3.1312(a) and CCP section 1019.5(a), no further order is necessary. The minute order adopting the tentative ruling serves as the order of the court. [X] Service by the clerk will constitute notice of the order. [X] See attached copy of the Tentative Ruling. [ ] Judgment debtor ___ sworn and examined. [ ] Judgment debtor ___ failed to appear. Bench warrant issued in the amount of $__ JUDGMENT: { ]Money damages [ ] Default [ ] Other __ entered in the amount of: Principal $__ Interest $__ Costs $__ Attorney fees $__ Total $. { ] Claim of exemption [ ] granted [ ] denied. Court orders withholdings modified to $__per__ FURTHER, COURT ORDERS: [ ] Monies held by levying officerto be [ ] released to judgment creditor. [ ] returned to judgment debtor. [ ] $__ to be released to judgment creditor and balance returned to judgment debtor. [ ] Levying Officer, County of __, notified. [ ] Writ to issue [ ] Notice to be filed within 15 days. [ ] Restitution of Premises [ ] Other: __ CV-14b RO3-18 Bienen LAW AND MOTION MINUTE ORDER (20) Tentative Ruling Re: Election Integrity Project California, Inc. v. Orth et al. Superior Court Case No. 19CECG04296 Hearing Date: November 19, 2020 (Dept. 403) Motion: Demurrer to First Amended Complaint Tentative Ruling: To sustain the demurrer to the First Amended Complaint without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Prevailing parties to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Pursuant to a California Public Records Act (""CPRA") request, plaintiff seeks access (in-office review) to the following materials from the November 6, 2018 general election: a The envelopes in which the mail-in ballots were submitted by voters; b The envelopes in which the conditional ballots were submitted by voters; Cc The envelopes in which the provisional ballots were submitted by voters; and d The signatures on the registration statements of voters who submitted either mail-in, provisional, or conditional ballots for the November 6, 2018 general election. Plaintiff does not seek access to the ballots themselves. In the operative pleading, plaintiff seeks declaratory relief regarding their right to access and review these materials. Government Code, section 6258 provides, “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” The CPRA sets forth various exceptions to disclosure of public records, including “[rlecords, the disclosure of which is exempted or prohibited pursuant to federal or state law ...." (Gov. Code, §6254, subd. (k).) Elections Code, section 17301, subdivision (b), requires elections materials, including “packages” containing polling place ballots, vote by mail ("VBM") and provisional ballots, identification envelopes, spoiled/canceled ballots, as well as unused VBM ballots, to remain unopened (essentially sealed) for 22 months from the date of an election where candidates for federal offices are voted upon. These elections materials are to remain unopened unless an election contest or criminal prosecution is commenced within the 22-month period. (Elec. Code, § 17301, subdivision (c)). Additionally, Elections Code section 15370 provides, “After ballots are counted and sealed, the elections official may not open any ballots nor permit any ballots to be opened except as permitted in Sections 15303 and 15304, or in the event of a recount.” These statutes clearly provide that disclosure of the materials requested by plaintiff is prohibited, as they are required by law to remain sealed in packages and unopened until they are destroyed 22 months later, unless there is an election contest or criminal prosecution. These “packages,” which specifically include the “identification envelopes” for VBM and provisional ballots that plaintiff seeks in this action, cannot be produced or made available for review pursuant to a CPRA request. (See Citizen’s Oversight, Inc. v. Vu (2019) 35 Cal.App.sth 612, 618.) In addition to the envelopes, plaintiff seeks to review the signatures on the registration statements of voters. However, the affidavit of voter registration information is to remain confidential. (Elec. Code, § 2194, subd. (a}(1).) The voter's home address or signature are to be released only if the person's vote is challenged, but only to the challenger, fo elections officials, and to other persons as necessary to make, defend against, or adjudicate the challenge. (Ibid., subd. (c)(1).) Moreover, "The home address, telephone number, email address, precinct number, or other number specified by the Secretary of State for voter registration purposes, and prior registration information shown on the affidavit of registration, is confidential and shall not be disclosed to any person, except pursuant to Section 2194 of the Elections Code.” (Gov. Code, § 6254.4, subd. (a).) There is no challenge to any person's vote, and accordingly plaintiff cannot view voter signatures. Accordingly, this information is exempted from disclosure pursuant to Government Code section 6254, subdivision (k). Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK He on (Judge’ fAnitials) at PROOF OF SERVICE Election Integrity Project California, Inc., Plaintiff, v. Brandi L. Orth, County Clerk/ Registrar of Voters, County of Fresno, and Does 1-10, inclusive. Fresno Superior Court Case No.19CECG04296 |, Vincent Soliz, declare as follows: | am a resident of the State of California, over the age of eighteen years, and not a party to the within action. | am employed at the Fresno County Counsel’s Office, 2220 Tulare Street, Fifth Floor, Fresno, California, 93721. On November 24, 2020, | served a copy of the within: JUDGMENT AFTER DEMURRER TO FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF AND VIOLATION OF THE CALIFORNIA PUBLIC RECORDS ACT SUSTAINED WITHOUT LEAVE TO AMEND 10 on the interested parties in said action addressed as follows: 11 Robert E. Williams, Esq. 12 Law Offices of Robert E. Williams 13 1455 Frazee Road, Suite 500 San Diego, CA 92108 14 rew@rewilliamslaw.com Attorneys for Plaintiff, Election Integrity 15 Project California, Inc. 16 x by transmitting via Electronic Mail, the above listed document(s) to the Electronic 17 Mail address(es) set forth above on this date before 5:00 p.m. pacific daylight time. 18 19 by placing the document(s) listed above for mailing in the United States mail at Fresno, California, in accordance with my employer's ordinary practice for 20 collection and processing of mail and addressed as set forth above. 21 | declare under penalty of perjury under the laws of the State of California that 22 the foregoing is true and correct. Executed on November 24, 2020, at Fresno, California. Vv 23 24 Vincent Soliz 25 Litigation Paralegal 26 27 28 Proof of Service Fresno Superior Court Case No. 19CECG04296