2016-00204821-CU-CR

Roque “Rocky” De La Fuente vs. Alex Padilla, Secretary of St

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Medley, Amie L.

Defendant Alex Padilla’s unopposed motion for judgment on the pleadings is granted without leave to amend.

In this action, Plaintiffs Roque De La Fuente, Danielle De La Fuente, the American Independent Party, Dr. Mark Steinberg and Dr. Robert Ornelas allege various violations of the Elections Code relating to the preparation and printing of ballots and the qualifications of candidates leading up to the November 2016 general election. The complaint alleges a single cause of action for declaratory and injunctive relief. The De La Fuente plaintiffs dismissed their claims in June 2017.

The motion is granted on the basis that Plaintiffs failed to state facts sufficient to constitute a cause of action. (CCP § 438(c)(1)(B)(ii).) Plaintiffs failed to properly and timely challenge the alleged election code violations which they allege occurred leading up to the November 2016 general election. Any election contest must be filed within 30 days of the election yet the complaint was filed on December 15, 2016, 39 days after the election. (Elec. Code § 16401.) Further, the election has occurred and all of the claims are moot. “[T]here is no actual controversy in this case

because the election has been held and the results have been certified.” (Vargas v. Balz (2014) 223 Cal.App.4th 1544, 1550.) Moreover, Plaintiffs request an injunction requiring the Secretary of State to comply with California law in the “future”. This is not an appropriate request. “There is a presumption that state officers will obey and follow the law” and “without a present or future injury, no injunction can lie.” (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 751.) There are no allegations that the violations that allegedly occurred in connection with the November 2016 election are likely to occur again. An injunction serves to prevent future injury and is not applicable to wrongs that have been completed. An injunction is authorized only when it appears that wrongful acts are likely to recur. Scripps Health v. Marin (1999) 72 Cal. App. 4th 324, 332-333.)

The motion is granted for the reasons stated in Defendant’s memorandum of points and authorities. The Court construes Plaintiffs’ failure to oppose the motion as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Leave to amend is not granted as the Court does not see any reasonable possibility that the defects can be cured.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Defendant’s counsel is ordered to notify Plaintiffs immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Plaintiffs appear without following the procedures set forth in Local Rule 1.06(B).

Defendant shall submit an order and judgment pursuant to CRC 3.1312 and CCP § 438(h)(3).