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Dorothy Stow vs. Kimberly Smith, et al. 1 2 3 4 5 6 7 8 9 10 11 DOROTHY STOW, 12 13 14 15 16 17 18 19 20 21 22 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 23 and Complaint for Injunctive and Declaratory Relief and petitionerts motion for peremptory writ 24 mandate and injunctive and declaratory relief came for hearing before the Honorable William 25 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: 28 1. Partiest requests for judicial notice are GRANTED in their entirety. Order Re: Demurrer/Petition for Writ of Mandate 1 2 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 .., J 4 5 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 8 9 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 13 alternatively state that the petitions were procedurally defective based upon the failure to attach 14 copies of the ordinances to each section of the petitions as required by Elections Code section 15 9238(b). Therefore; real parties in interest's general demurrer to the petition and complaint is 16 relief is DENIED. 19 20 21 Dated: 22 23 24 25 26 27 28 17 18 OVERRULED. 4. Petitioner's petition for peremptory writ of mandate and injunctive and declaratory ~ William J. EI ding Judge oft Superior C Order Re: Demurrer/Petition for Writ of Mandate 2 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