Dorothy Stow vs. Kimberly Smith, et al.
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11 DOROTHY STOW,
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F
JUL 42006
KIRI TORRE
Chief Executive Officer/Clerk
Superior -ou .1 C,.AhCO.Uffity of Santa Cl fa
o PUTY
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
Petitioner,
ase No. CV 1-06-CV-063723
vs.
RDER RE: DEMURRER TO FIRST
MENDED PETITION FOR
EREMPTORY WRIT OF MANDATE AN
OMPLAINT FOR PERMANENT AND
ECLARATORY RELIEF AND MOTION
OR PEREMPTORY WRIT OF MANDATE
IMBERL Y
SMITH, et al.
Respondents.
A TTY CHI AND HELAM LUK,
Real Parties in Interest.
Real Parties in Interest Patty Chi and Helam Lukls (IIreal parties in interestll) demurrer t
petitioner Dorothy Stowls (lIpetitionerll) First Amended Petition for Peremptory Writ of Mandat
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and Complaint for Injunctive and Declaratory Relief and petitionerts motion for peremptory writ
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mandate and injunctive and declaratory relief came for hearing before the Honorable William
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26 Elfving on July 14,2006 at 10:30 a.m. in Department 2. After consideration of the moving
27 papers, the opposition briefs, oral argument, and the files herein, the Court orders as follows:
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1. Partiest requests for judicial notice are GRANTED in their entirety.
Order Re: Demurrer/Petition for Writ of Mandate
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2. Real Parties in Interest's special demurrer to petitioner's First Amended Petition for
Peremptory Writ of Mandate and Complaint for Injunctive and Declaratory Relief based upon
uncertainty is OVERRULED.
3. Real Parties in Interest's general demurrer to petitioner's First Amended Petition for
Peremptory Writ of Mandate and Complaint for Injunctive and Declaratory Relief is
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6 OVERRULED. The court finds that the referendum petitions are not procedurally or technically
7 defective based upon the lack of a IIshort titlell because the Itshort title" requirement under
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Elections Code section 9011 is not applicable to municipal referendum petitions under Elections
Code section 9237.5. Rather, the form of municipal referendum petitions is specifically
10 contained in Elections Code section 9238(b) which does not include a IIshort titlelt
11 requirement.(See Elections Code section 9238(b) [requiring that each section of the petition
12 contain either the Itnumber or titlelt of the ordinance.];Code of Civil Procedure section 1859) The
court however finds that a cause of action is stated for purposes of demurrer where allegations
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alternatively state that the petitions were procedurally defective based upon the failure to attach
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copies of the ordinances to each section of the petitions as required by Elections Code section
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9238(b). Therefore; real parties in interest's general demurrer to the petition and complaint is
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relief is DENIED.
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21 Dated:
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OVERRULED.
4. Petitioner's petition for peremptory writ of mandate and injunctive and declaratory
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William J. EI ding
Judge oft Superior C
Order Re: Demurrer/Petition for Writ of Mandate
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IN THE SUPERIOR COURT OF CALIFORNIA (ENDORSED)
IN AND FOR THE COUNTY OF SANTA CLARA II
Petitioner:
Dorothy Stow JUL 1 2006
Respondent: KIRI TORRE
rltv rm1nf'11 of thp ritv of rllnprtino pt ~1 Chief Executive Officer/Clerk
Superior Court of CA County of Santa Clara
IDErU
n. C' ^ "^',.. '7I1.AT.__
PROOF OF SERVICE OF: Case Number
ORDER RE: DEMURRER TO FIRST AMENDED 1-06-CV063723
PETITION FOR PEREMPTORY WRIT OF
MANDATE AND COMPLAINT FOR PERMANENT
AND DECLARATORY RELIEF AND MOTION FOR
PEREMPTORY WRIT OF MANDATE
CLERK'S CERTIFICATE OF SERVICE: I certify that I am not a party to this case and that a
true copy of this document was served as follows:
[ By personal service on the parties and on the date shown below.
[X] By first class mail, postage prepaid, addressed as shown below and mailed on the date
shown below.
DATED: July 14. 2006
Kiri Torre, Chief Executive Officer/Clerk
BY
MnrrhnP
Stacie Marshall
,_Deputy
Marguerite Leoni
Sean Welch
NIELSON MERKSAMER PARRINELLO
591 Redwood Highway. #4000
Mill Valley. CA 94941
Stuart Flashman
LAW OFFICE OF STUART FLASHMAN
5626 Ocean View Dr
Oakland. CA 94618-1533
Charles Kilian
20410 Town Center Lane. Suite 210
Cupertino. CA 95014
Bern Steves
LAW OFFICES OF BERN STEVES
P.O. Box 1615
Cupertino. CA 95015
Proof of service
Clerk's Certificate of Service