Filed 10/31/13 Taitz v. Obama CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


ORLY TAITZ,

     Plaintiff and Appellant,                                          G047746

         v.                                                            (Super. Ct. No. 30-2012-00582135)

BARACK OBAMA et al.,                                                   OPINION

     Defendants and Respondents.



                   Appeal from orders of the Superior Court of Orange County, Charles
Margines, Judge. Affirmed.
                   Orly Taitz, in pro per., for Plaintiff and Appellant.
                   No appearance for Defendants and Respondents.


                                             *               *               *
              Orly Taitz filed a statement of contest seeking to prevent the Secretary of
State from certifying the election results of the 2012 primary election, contending
President Obama is not a natural born citizen, and thus is ineligible for the office of the
President, and that California voter rolls are rife with fraud. She named as defendants
President Barack Obama, Senator Diane Feinstein, and Elizabeth Emken, who prevailed
over Taitz in the Republican primary to later challenge Senator Feinstein in the general
election. Failing in her attempt to block the primary results, Taitz later filed an ex parte
motion seeking to stay certification of the results of the 2012 general election.
              The trial court denied her motion for a stay of certification and dismissed
the proceeding on multiple grounds, including that Taitz never properly served
defendants, failed to exhaust her preelection remedies, that her challenge was barred by
laches, and that only the Sacramento Superior Court has jurisdiction to hear such election
challenges. The trial court also awarded third party discovery sanctions against Taitz.
We affirm.


                                            FACTS


              On July 9, 2012, Orly Taitz filed an “Affidavit of Elections Challenge” to
the 2012 California primary election, in which she was a candidate for the Republican
nomination to challenge Senator Diane Feinstein’s seat in the United States Senate. Taitz
alleged President Obama fraudulently represented his place of birth, is not a natural born
citizen, and thus is ineligible for the office of President of the United States under article
II, section 1 of the United States Constitution. She attached affidavits from several
purported experts testifying to various pieces of evidence Taitz claims proves President
Obama misrepresented his birthplace. She also claimed, based principally on four
illegible pages of the voter rolls, that the voter rolls are full of individuals as old as 200
years old. For relief, Taitz sought declaratory and injunctive relief precluding the

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certification of all votes in the 2012 primary election, and in particular all votes for
President Obama.
              Taitz filed an ex parte motion for a 45 day stay of the certification of the
primary election results. The hearing was held on July 13, 2012, and there was
apparently argument, though Taitz did not provide a reporter’s transcript on appeal. Taitz
did provide a minute order denying her motion, but the minute order does not set forth
the grounds for the denial.
              In October, Taitz filed an ex parte motion to obtain third party discovery
from Occidental College, which she claims has evidence concerning President Obama’s
citizenship. She also moved ex parte for a stay of certification of the 2012 general
election results. Taitz did not provide us a copy of either motion, nor did she provide a
reporter’s transcript of the hearing. Counsel for Occidental College appeared. On
November 1, 2012, the court denied the motions and awarded sanctions against Taitz
payable to Occidental College’s counsel in the amount of $4,000.
              Around the same time, Taitz moved for an entry of default against
defendants President Obama, Senator Feinstein, and Elizabeth Emken, none of whom had
appeared. Again, we were not provided with the moving papers, nor the reporter’s
transcript. On November 7, 2012, the court denied the motion on four grounds. First, it
held there was no proper service. Second, Taitz failed to exhaust her preelection remedy
of obtaining a writ of mandate pursuant to Elections Code section 13314. Third, the
petition was untimely — both prematurely filed and, because Taitz waited so long to
properly serve defendants, barred by laches. Fourth, only Sacramento County Superior
Court had jurisdiction to hear the case pursuant to Elections Code section 16421. On
December 3, 2012, Taitz appealed from the orders entered on November 1 and 7, 2012.




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                                       DISCUSSION


              We begin with the observation that ultimately undermines everything Taitz
attempted to do below: this was a challenge to a primary election.
              With that in mind, the most fundamental defect in Taitz’s election contest
was that the Orange County Superior Court, where the contest was filed, does not have
jurisdiction. Elections Code section 16421, which governs the filing of challenges to a
primary election, states, “In the case of an office for which candidates are certified for the
ballot by the Secretary of State, or in the case of a statewide ballot measure, the superior
court having jurisdiction shall be the Superior Court for the County of Sacramento.”
(Italics added.) The elections at issue here were for United States President and the
United States Senate, for both of which the California Secretary of State certifies
candidates for the ballot.
              Taitz counters that, rather than dismissing the action, the court was
compelled to transfer the action pursuant to Code of Civil Procedure section 396, which
states, “(a) No appeal or petition filed in the superior court shall be dismissed solely
because the appeal or petition was not filed in the proper state court. [¶] (b) If the
superior court lacks jurisdiction of an appeal or petition, and a court of appeal or the
Supreme Court would have jurisdiction, the appeal or petition shall be transferred to the
court having jurisdiction upon terms as to costs or otherwise as may be just, and
proceeded with as if regularly filed in the court having jurisdiction.” Code of Civil
Procedure section 396, however, applies by its own terms only to an “appeal or petition,”
and concerns transfers of “appeals or petitions” from a superior court to an appellate
court having jurisdiction. Under Elections Code section 16421, an appellate court does
not have original jurisdiction. Original jurisdiction lies in the Sacramento Superior
Court. Thus, Code of Civil Procedure section 396 does not apply here. Accordingly,
dismissal was proper.

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              Additionally, the orders Taitz appeals from were issued long after the
superior court could have done anything about the primary election. Elections Code
section 16520, which sets forth the procedures for contesting primary elections, states,
“The clerk of the superior court, within five days after the end of the time for filing
affidavits, shall present all the affidavits to the presiding judge of the superior court. The
presiding judge shall forthwith designate the time and place of hearing, which shall be
not less than 10 nor more than 20 days from the date of the order.” (Italics added.) The
end of the time allowed for filing statements of contest to a primary election is “five days
after either the completion of the official canvass or the completion of any postcanvass
risk-limiting audit conducted pursuant to Section 15560 by the county last making the
declaration.”1 (Elec. Code, § 16421.) The trial court found the Secretary of State
declared the results of the election on July 13, 2012, which meant the end of the period
for filing statements of contest was July 18, 2012, and the clerk had until July 23, 2012,
to notify the superior court of all contests filed. The superior court was then required to
hold a hearing between 10 and 20 days of that notification. The latest a hearing could be
held was August 13, 2012 (Aug. 12 was a Sunday).
              There was a hearing on July 13, 2012, at which the court denied Taitz’s ex
parte motion for a 45 day stay of the certification of the election results — a request that
was wholly outside the statutory procedure for challenging a primary election — and five
days before the end of the time allowed for filing statements of contest. We have no
indication that Taitz requested the court to set a hearing before August 13 on her
statement of contest, nor did she seek an emergency writ of mandate to challenge the

1             “The ‘official canvass’ is the public process of processing and tallying all
ballots received in an election, including, but not limited to, provisional ballots and vote
by mail ballots not included in the semifinal official canvass. The official canvass also
includes the process of reconciling ballots, attempting to prohibit duplicate voting by vote
by mail and provisional voters, and performance of the manual tally of 1 percent of all
precincts.” (Elec. Code, § 335.5.)


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court’s failure to set such a hearing. While the clerks of the Sacramento Superior Court
are presumably familiar with their duty to notify the presiding judge of a statement of
contest, so as to trigger the presiding judge’s duty to set a hearing, it is unreasonable to
expect a clerk of a court that never hears these election challenges, and is statutorily
ineligible to do so, to be aware of the statutory procedure. Taitz’s failure to bring to the
court’s attention that it was purportedly required to hold a hearing on or before August 13
forfeited her challenge to the primary election. And by the time of the court’s dismissal
of Taitz’s petition on November 7, 2012 — which is one of the orders she appeals
from — the general election had already occurred. It was far too late for any further
challenge to the primary election, so dismissal was proper.
              Moreover, even if the November 7, 2012 dismissal had still been within the
proper time frame for challenging the primary election results, Taitz’s notice of appeal
was untimely. Elections Code section 16920, which governs appeals concerning
challenges to primary elections, states, “Either party to a contest may appeal to the
district court of appeal of the district where the contest is brought, if the appeal is
perfected by the appellant within 10 days after judgment of the superior court is
pronounced. The appeal shall have precedence over all other appeals and shall be acted
upon by the district court of appeal within 10 days after the appeal is filed.” Here, the
court’s order of dismissal is dated November 7, 2012. Taitz filed her notice of appeal on
December 3, 2012. It was untimely.
              We recognize that Taitz also appeals from an order denying her ex parte
motion to challenge the results of the general election. The problem is there is no
provision in the Elections Code for challenging the results of a general election by ex
parte motion. Rather, the Elections Code sets forth specific procedures for challenging
the results of a general election by verified statement of contest. (Elec. Code, §§ 16400,
16401.) Taitz never filed a verified statement of contest to the general election, much



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less served it on the defendants. Thus there was no proper challenge to the general
election before the court.
              Even if Taitz’s ex parte motion could somehow qualify as a verified
statement of contest, moreover, Taitz did not provide us a copy of the motion. Nor did
she provide us with a reporter’s transcript or any other record of the court’s basis for
denying the motion. We do not presume error on appeal. It is the appellant’s burden to
provide an adequate record of review. Taitz did not do so, and thus we would be
compelled to affirm even if the challenge had been procedurally sound. (Ballard v. Uribe
(1986) 41 Cal.3d 564, 574-575.)
              Finally, Taitz’s challenge to the award of $4,000 in discovery sanctions in
favor of third party Occidental College likewise fails. Taitz contends the trial court
erroneously determined that the records she sought from Occidental College were private.
To begin with, she has not provided us a copy of the motion, the subpoena, or the
reporter’s transcript. Accordingly, we have no way of meaningfully reviewing the order
and would affirm on that basis alone. Further, according to the notice of ruling prepared
by Occidental College’s counsel, the court’s order was based on numerous grounds, not
simply privacy, none of which Taitz addresses in her brief. For example, the court found,
(1) the ex parte motion to compel was prepared, filed, and served before Taitz filed and
served the underlying subpoena itself; (2) “[t]he ‘ex parte’ motion refers to a request for
documents pursuant to . . . Code of Civil Procedure Section 2031.310 which applies . . .
only to parties and Occidental College is not a party in this action;” (3) the subpoena gave
Occidental College less than 24 hours to respond; (4) the subpoena was served by e-mail;
and (5) “the relief sought cannot be obtained via ex parte application . . . .” Taitz
addressed none of these rationales and thus waived the issue on appeal.




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                                   DISPOSITION


           The orders of the trial court are affirmed.




                                               IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.




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