Nicolaie Cocis (CA Bar # 204703)
Transcript of Nicolaie Cocis (CA Bar # 204703)
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DEFENDANT MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS
Nicolaie Cocis (CA Bar # 204703) Law Office of Nic Cocis & Associates 38975 Sky Canyon Drive, Suite 211 Murrieta, CA 92563 Tel: (951) 695-1400 Fax: (951) 698-5192 Email: [email protected] Horatio G. Mihet* Liberty Counsel P.O. Box 540774 Orlando, Florida 32854 Tel: (407) 875-1776 Fax: (407) 875-0770 [email protected] * Admitted Pro Hac Vice Attorneys for Defendant Sandra Susan Merritt
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff, vs.
DAVID ROBERT DALEIDEN and SANDRA SUSAN MERRITT,
Defendants.
Case No.: 17006621 DEFENDANT SANDRA SUSAN MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS Hearing Date: August 24, 2017 Time: 9:00 a.m. Dept.: 9 Judge: Christopher C. Hite
DEFENDANT SANDRA SUSAN MERRITT’S REPLY
IN SUPPORT OF HER MOTION TO DISMISS
INTRODUCTION
Perhaps not surprisingly, the Attorney General has elected not to file any response to the written
Motion to Dismiss filed by Defendant Sandra Susan Merritt. For this reason alone, the Court may and
should grant Ms. Merritt’s motion, and should dismiss Counts One through Fourteen of the Criminal
Complaint.
The Attorney General has, however, served (and presumably filed) a Response in Opposition to
Defendant Merritt’s Oral Motion to Dismiss (hereinafter “Opposition”). Procedurally, this Opposition is
improper because this Court instructed Ms. Merritt to file a written motion to dismiss. (Transcript of July
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DEFENDANT MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS
17, 2017 Hearing, 13:3-11) (copy attached as Exhibit B to Merritt’s Motion to Dismiss).1 The Attorney
General should have awaited (and responded to) that motion, which Ms. Merritt did timely file. But the
Attorney General is continuing to display a remarkable inability or unwillingness to follow the plain
requirements of the law or this Court’s instructions.
Substantively, as shown below, the Attorney General’s Opposition is entirely non-responsive to
the arguments and authorities for dismissal actually presented by Ms. Merritt. The Court may search every
word in the text and footnotes of the Opposition and not find a single reference to (let alone discussion of)
either Williams v. Superior Court or Osman, the two cases principally relied upon by Ms. Merritt, which
Ms. Merritt’s counsel provided to the Attorney General (and the Court) at the July 17 hearing. What the
Court will find instead are misrepresentations upon misrepresentations (both factual and legal), as well as
citations to civil cases and civil rules, as if (bizarrely) the Attorney General has forgotten that he has
brought a criminal case.
At the end of the day, no amount of obfuscation or misrepresentation can change the simple and
undeniable fact that the Attorney General did not file an amended complaint in Ms. Merritt’s case within
the 10 days allotted by the Court and the mandatory statutes. Notwithstanding the Attorney General’s
unsupported pleas for “correction” of what he calls a mere “clerical error,” there is only one remedy the
law allows: dismissal. For these reasons, Ms. Merritt’s Motion to Dismiss should be granted, and Counts
One through Fourteen of the Criminal Complaint should be dismissed.
1 This was the Court’s instruction to the parties, which the Attorney General acknowledged: THE COURT: I am actually convinced by counsel that we'll take it one step at a time. So with regards to
Ms. Merritt, just to file the motion to dismiss. And for Mr. Daleiden, it will be on for demurrer and entry of plea. So both parties, Ms. Merritt and Mr. Daleiden, you are ordered present back in this department on August 24, 2017, at 9:00 a m., okay?
MS. JAURON: Thank you, Your Honor.
Id. (emphasis added).
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DEFENDANT MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS
ARGUMENT
A. The Attorney General Misrepresents This Court’s Ruling in Sustaining Ms. Merritt’s Demurrer.
Right out of the starting gate, on the first page of his Opposition, the Attorney General incredibly
claims that when this Court sustained Ms. Merritt’s demurrer to the original Complaint, “[t]he Court
granted the Attorney General leave to amend the Complaint within 10 days, pursuant to Penal Code
Section … 1009.” (Opposition at 1) (emphasis added). The Attorney General then builds his entire
argument upon the seemingly more lenient requirement of Penal Code 1009. (Id. at 2-4).
The problem with the Attorney General’s representation is that it is demonstrably false, and, like
a house of cards, his argument collapses under the slightest scrutiny. This Court most certainly did not
grant the Attorney General leave to amend pursuant to Penal Code Section 1009.2 Instead, at the June 21,
2017 demurrer hearing, this Court referenced only Penal Code Section 1007 when it sustained both Ms.
Merritt’s and Mr. Daleiden’s demurrers. (See June 21, 2017 Transcript of Proceedings (hereinafter, “June
21 Tr.”), relevant portions attached hereto, as Exhibit A.) Indeed, Section 1009 does not appear one time
in the 30-page transcript. (Id.). On the contrary, the Court was very clear that it granted the Attorney
General 10 calendar days to amend “as set forth in Penal Code Section 1007.” (June 21 Tr. at 19:27 to
20:3) (emphasis added).
2 Section 1009 provides: An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint.
Id. (emphasis added).
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Penal Code Section 1008 works in lock-step with Section 1007. Section 1007 provides a prosecutor
with maximum 10 days to file an amended complaint after a demurer is sustained: “If the demurrer to a
complaint is sustained, the court must, if the defect can be remedied, permit the filing of an amended
complaint within such time not exceeding 10 days as it may fix.” Code § 1007 (emphasis added). Section
1008 prescribes what happens when this filing deadline is missed: “If the demurrer is sustained, and …
no amendment is made or amended pleading is filed within the time fixed therefor, the action shall
be dismissed . . ..” Code § 1008 (emphasis added). Unlike Section 1009, Section 1008 provides a strict
and mandatory (i.e., “shall”) remedy – dismissal.
The Attorney General’s attempt to transmute his failure to timely file an Amended Complaint in
Ms. Merritt’s case from Sections 1007 and 1008 to Section 1009 is understandable, but not original, and
certainly not permitted. In Williams v. Superior Court, 111 Cal. App. 4th Supp. 1 (App. Dep’t Super. Ct.
2003), the court encountered – and rejected – the exact same maneuver attempted by the Attorney General
here: Contrary to the People’s assertion, section 1009 does not control the facts at bar. While that section confers discretionary power upon a court to allow amendments at any stage of the proceedings and within any time it desires, the section contains no explicit time limit for amendments after the sustaining of a demurrer. The section simply allows an amended complaint without leave of court at any time before a defendant pleads or a demurrer to the original pleading is sustained. Only section 1007 contains any express time limit for filing an amended complaint after a demurrer has been sustained by court order. Section 1009’s language permitting the filing of an amended complaint “... for any defect or insufficiency, at any stage of the proceedings, ...” follows the section’s grant of authority to file without leave of court an amended complaint “at any time before the defendant pleads or a demurrer to the original pleading is sustained.” Thus, we construe section 1009 to mean that an amended complaint will be permitted after a defendant pleads, or within such discretionary time limit as the court directs subject to section 1007, but that section 1007 controls one unmistakable circumstance, namely, filing an amended complaint after a successful demurrer. Section 1007 specifies the amended complaint must then be filed “... within such time not exceeding 10 days as [the court] may fix.”
Id. at 6-7 (alterations in original) (emphasis added).
This Court should hold likewise. By its plain language, Section 1009’s leniency on amendments
ended after Ms. Merritt filed her demurrer. Once this Court sustained that demurrer, Sections 1007 and
1008 governed the Attorney General’s deadline for filing an Amended Complaint. The Attorney General
eschews Sections 1007 and 1008 because he knows that he failed to meet that deadline, and he also knows
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that dismissal is the only appropriate remedy for that failure. Counts One through Fourteen should be
dismissed.
B. The Attorney General Has Not Timely Filed an Amended Complaint as Required by Penal Code Section 1007, and He Misrepresents Material Facts to Hide or Excuse His Failure.
The Attorney General makes yet another, even more egregious, misrepresentation when he
brazenly asserts without any proof that “two separate Amended Complaints were filed under only one
(Daleiden’s) court docket number.” (Opposition at 1-2.) Premised on this demonstrable misrepresentation
is the Attorney General’s argument that he merely made a “clerical error” with one of those “two separate”
Amended Complaints, which, he argues, is entitled to more leniency than an outright failure to file. (Id.)
However, this Court will undoubtedly recall that, at the July 17, 2017 hearing, Deputy Attorney
General Jauron stated before this Court that “[her] understanding [was] that by filing the complaint [not
multiple complaints] on June 30th with both names, that it was statutorily sufficient.” (July 17 Tr., Exh. B
to Merritt Mot. to Dismiss, at 4:15-17) (emphasis added.). The July 17 explanation that a single Amended
Complaint was filed in Daleiden’s case alone was not only more candid, but is also likely the true one. On
August 15, 2017, Nic Cocis, counsel for Ms. Merritt, spoke with this Court’s Criminal Division Court
Supervisor, Ms. Sherife Huseny. (Declaration of Nic Cocis, ¶¶ 1-2, attached hereto as Exhibit B).
Supervisor Huseny confirmed that the Court’s records indicate that only one Amended Complaint was
filed on June 30th, and it was filed in Mr. Daleiden’s case, using only his case number. (Id. at ¶ 3). There
are no notes in either Mr. Daleiden’s file or Ms. Merritt’s file indicating that two separate Amended
Complaints were filed under Mr. Daleiden’s case number. (Id. at ¶¶ 4-5). Supervisor Huseny stated that if
the Attorney General had in fact filed two Amended Complaints as he claims, he would have been
provided with two time-stamped copies as proof of filing, which the Attorney General would be able to
produce. (Id. at ¶ 6). Critically, Ms. Huseny also confirmed that a Court Clerk would not allow two
identical Amended Complaints to be filed in the same case – as the Attorney General claims to have
done – absent a Court order. (Id. at ¶ 7). “It would not happen” without a court order, because such
duplicate filing attempts would be rejected by the clerk. (Id.) (emphasis added). Supervisor Huseny
confirmed that there is no indication anywhere in this Court’s records that a duplicate or separate amended
pleading was presented but rejected by a Clerk of Court. (Id. at ¶ 5.)
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Notably, and consistent with Supervisor Huseny’s information, the Attorney General has not
produced (and cannot produce because he does not have) any proof of filing an amended complaint in Ms.
Merritt’s case, or even proof of filing a “separate Amended Complaint” in any case, for that matter.
Accordingly, the Attorney General’s current statement that he filed “two separate Amended Complaints”
and merely got the docket number wrong in one of them: (1) is nothing more than the unsworn argument
of counsel (and therefore not sworn evidence properly considered by this Court); (2) is conclusively
rebutted by Deputy Attorney General Jauron’s candid in-court statement on July 17, 2017 that she filed
“the complaint” (not multiple complaints); and (3) is rendered highly improbable if not categorically
impossible by Supervisor Huseny’s statement regarding how such a duplicative filing would have been
received, rejected and documented by the Clerk, had it actually been attempted.
Therefore, the issue before this Court has been and remains the Attorney General’s failure to timely
file an amended complaint in Ms. Merritt’s case, and not a mere “clerical” or “scrivener’s” error, and
certainly not any failure on the part of the Clerk of Court to properly receive and file a document. As
explained in Ms. Merritt’s Motion to Dismiss and reiterated above, both Sections 1007 and 1008 explicitly
require an amended complaint to be filed. The Attorney General’s failure to file any amended complaint
in Ms. Merritt’s case, let alone a timely one, is fatal. Section 1008 is mandatory and jurisdictional, and
thus it must be strictly enforced to protect Ms. Merritt’s constitutional and statutory rights. Dismissal is
warranted.
C. The Attorney General Has Provided No Authority Allowing for His Asserted “Clerical Error” to be Corrected or Excused.
Even if the Attorney General’s failure to timely file an amended complaint in Ms. Merritt’s case
had been a “mere” “clerical error” in writing the wrong docket number on a separate pleading actually
filed with the Clerk – which it was not – the Attorney General inaptly resorts to inapplicable statutes and
standards in his unsuccessful attempt to excuse it, while completely ignoring controlling statutes and
caselaw holding that his error is neither excusable nor curable.
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DEFENDANT MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS
1. The Attorney General’s Reliance on Civil Law Standards and on Penal Code Sections 959 and 960 Is Misplaced.
Curiously, after setting forth the (in)applicable law (Section 1009), the Attorney General, without
any argument or explanation tersely sets forth both the civil and criminal standards for determining a
demurrer. (Opposition at 2-3.) The case at bar is well past the argument on Ms. Merritt’s demurrer, and
that law has no relevance to Ms. Merritt’s instant motion to dismiss.
Nevertheless, the Attorney General moves on to cite, without meaningful argument or explanation,
Sections 959 and 960, (Opposition at 3-4), and thereafter resorts to a quote from a civil case, seemingly
for the proposition that liberal leave to amend should be granted. (Id. at 4 (citing Harris v. City of Santa
Monica, 56 Cal. 4th 203, 240 (2013)). Tellingly, the Attorney General does not include the internal
citations in the block quote from the civil case, which would have more obviously revealed the civil (and
thus inapplicable) nature that law.3
The Attorney General surely must know and understand that the charges his office brought against
Ms. Merritt are criminal charges, and not mere civil allegations. The Attorney General should also know
that the government’s burden will be more difficult to surmount when attempting to cut inroads through
criminal defendants’ constitutional and statutory protections. Yet, without explanation or argument, the
Attorney General invokes the civil standard—the rule of liberal amendment to correct a defective
pleading. As explained above and in Ms. Merritt’s Motion to Dismiss, the applicable statutes are Penal
Code Sections 1007 and 1008, which are statutes designed to supplement and safeguards defendants’
constitutional protections in criminal cases.
3 The full quote is set forth below, with civil law citations emphasized: However, “[n]o error or defect in a pleading is to be regarded unless it affects substantial rights.” (Buxbom v. Smith (1944) 23 Cal.2d 535, 542, 145 P.2d 305, citing Code Civ. Proc., § 475.) The primary function of a pleading is to give the other party notice so that it may prepare its case (Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 619, 155 P.2d 42), and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. This principle is consistent with the rule that leave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412, 75 Cal.Rptr.2d 257; see also 5 Witkin, Cal. Procedure, supra, Pleading, § 1194, pp. 625–627.)
Harris v. City of Santa Monica, 418, 56 Cal.4th 203, 240 (2013) (emphasis added).
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As for Penal Code Sections 9594 and 9605, they likewise provide no refuge for the Attorney
General, because he badly misreads them out of context. Sections 959 and 960 are found in the Penal
Code, Part 2, Title 5 (The Pleadings), Chapter 2 (Rules of Pleading), while Sections 1007 and 1008 are
found in the Penal Code, Part 2, Title 6 (Pleadings and Proceedings Before Trial), Chapter 3 (Demurrer
and Amendment). Although statutes under Title 5, Chapter 2 can form the bases for a demurrer, those
sections are not relevant to determine whether the Attorney General should be excused from his failure to
file an amended complaint in Ms. Merritt’s case. Challenges under Sections 959 and 960 concern proper
notice of the charges to protect criminal defendants, while avoiding archaic common law pleading
requirements. See, e.g., People v. Silver, 75 Cal. App. 2d 1, 3 (1946) (Sections “951, 952, 954, 956 and
959 of the Penal Code [were amended] so as to simplify and modernize the archaic rules of pleading
theretofore governing indictments and informations.”).
The purpose of Sections 959 and 960 (among other pleading statutes) is to determine the
substantive elements necessary to sufficiently state a cause of action. See, e.g., People v. Kelly, 59 Cal.
372 (1881). Section 959, for example, prescribes “general regulations as to the form and substance of
indictments and informations.” Id. at 375-76 (emphasis added). Similarly, the court in People v. Curtis,
4 Section 959 provides: The accusatory pleading is sufficient if it can be understood therefrom: 1. That it is filed in a court having authority to receive it, though the name of the court be not stated. 2. If an indictment, that it was found by a grand jury of the county in which the court was held, or if an information, that it was subscribed and presented to the court by the district attorney of the county in which the court was held. 3. If a complaint, that it is made and subscribed by some natural person and sworn to before some officer entitled to administer oaths. 4. That the defendant is named, or if his name is unknown, that he is described by a fictitious name, with a statement that his true name is to the grand jury, district attorney, or complainant, as the case may be, unknown. 5. That the offense charged therein is triable in the court in which it is filed, except in case of a complaint filed with a magistrate for the purposes of a preliminary examination. 6. That the offense was committed at some time prior to the filing of the accusatory pleading.
Id. (emphasis added). 5Section 960 provides:
No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.
Id. (emphasis added).
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36 Cal. App. 2d 306 (1940), warned that the sufficiency of an indictment cannot be determined by focusing
solely on one statute, and further explained the purpose of Section 959, inter alia, in context:
“While appellants base their demurrer [to the indictment] entirely upon section 950 of the Penal Code, it is clear that section 950 must be construed in conjunction with sections 951, 952, and § 959, as amended by St. 1935, p. 859, in order to determine how and in what manner an indictment must allege the name and charge so that a defendant will be able to properly prepare a defense.”
Id. at 319 (quoting People v. Gilbert, 26 Cal. App. 2d 1, 8 (Ct. App., 2d Dist. 1938)) (emphasis added).
The pleading requirements found under Title 5, Chapter 2, are for the benefit of defendants—to provide
them with the required constitutional notice. That the Attorney General is relying on these statutes at this
juncture is puzzling; he appears to still be trying to re-litigate the validity of Ms. Merritt’s demurrer, which
has long since been sustained. The question before the Court is no longer whether Ms. Merritt’s demurrer
should have been sustained, but whether the Attorney General’s failure to file an amended complaint
within the statutory deadline can be excused.
In any event, the Attorney General’s reliance on Sections 959 and 960 standing alone—without
answering the obvious conflict with Sections 1007 and 1008 (if Section 959 and 960 did apply)—defies
common sense. The cases cited by Ms. Merritt in her Memorandum of Points and Authorities in Support
of her Motion to Dismiss demonstrate that Section 1008 carries a valid penalty of dismissal. Tellingly, the
Attorney General fails to even acknowledge, let alone discuss, Williams v. Superior Court or Osman v.
Appellate Div. – both of which are directly on point – even after counsel for Ms. Merritt raised these cases
at the July 17, 2017 hearing, provided copies to the Court and the Deputy Attorney General at that hearing,
and cited them extensively in Ms. Merritt’s subsequent Motion to Dismiss. The Attorney General has
nothing to say in response, and his silence is deafening. Sections 1007 and 1008 impose mandatory,
jurisdictional deadlines which cannot be altered or enlarged absent Ms. Merritt’s consent, which she has
not given.
Beyond the general inapplicability of Sections 959 and 960 to the issue at hand, the Attorney
General’s specific argument that “‘Docket Number’ is Not an Enumerated Requirement Within the
Accusatory Pleading Statute” (Opposition at 3) also widely misses the mark. That the term, “docket
number” (or case number) is not found in Section 959 does not speak to whether a docket/case number is
required. Common sense dictates that docket/case numbers are required (not to mention actually filing
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the pleadings with the Clerk, which the Attorney General did not do in Ms. Merritt’s case). Otherwise,
there would be sheer chaos at the Clerk’s office. In any event, there is a Rule of Court on point: Rule
2.111(5) of the California Rules of Court (“CRC”) requires the case number to be set on the first page, to
the right of and opposite the title of the case. Rule 2.111(5) is found within the “Trial Court Rules,” (CRC,
Rule 2.2), which “apply to all cases in the superior courts unless otherwise specified by a rule or statute.”
(CRC, R. 2.2). Notably, Rule 2.118 of the Trial Court Rules states that, with a handful of specific
exceptions not relevant here, the “clerk of court must not accept for filing or file any papers that do
not comply with the rules in this chapter.” (CRC, R. 2.118(a) (emphasis added).6 The Attorney General
cannot pretend that these Rules of Court do not exist, even if his fanciful construct of a “mere” “clerical
error” were to be accepted.
At the end of the day, however, the Attorney General’s outright failure to file any amended
complaint at all in Ms. Merritt’s case is the issue squarely presented by Ms. Merritt’s Motion to Dismiss.
The Attorney General’s reliance on People v. Biggins, 65 Cal, 564 (1881) is likewise misplaced. The
analysis in that case pertains to Section 951 with regard to the form of an indictment; it does not concern
a “missing” case number, let alone a missing Amended Complaint in its entirety. Biggins further does not
involve the application of the mandatory requirements of Sections 1007 and 1008.
6 Rule 2.118 provides: (a) Papers not in compliance
The clerk of the court must not accept for filing or file any papers that do not comply with the rules in this chapter, except the clerk must not reject a paper for filing solely on the ground that:
(1) It is handwritten or hand-printed; (2) The handwriting or hand printing on the paper is in a color other than black or
blue-black; or (3) The font size is not exactly the point size required by rules 2.104 and 2.110(c)
on papers submitted electronically in portable document format (PDF). Minimal variation in font size may result from converting a document created using word processing software to PDF.
(b) Absence of fax number or e-mail address The clerk must not reject a paper for filing solely on the ground that it does not contain an attorney’s or a party's fax number or e-mail address on the first page.
(c) Filing of papers for good cause For good cause shown, the court may permit the filing of papers that do not comply with the rules in this chapter.
Id. (emphasis added).
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Likewise, the Attorney General’s reliance on United Farm Workers of Am. v. Agric. Labor
Relations Bd., 37 Cal. 3d 912, 918 (1985), and Carlson v. State of Cal. Dep’t of Fish and Game, 68 Cal.
App. 4th 1268, 1270 (1998), is to no avail. Both cases concerned a clerk of court’s failure to accept a filed
pleading on the date that it was delivered. In United Farm Workers, the clerk mailed back to the filer the
petition that had timely arrived at the court clerk’s office, for failure to comply with a rule. 37 Cal. 3d at
914. Similarly, in Carlson, the clerk of court mailed a complaint back to the plaintiff for failure to include
a “Certificate of Assignment” required by a local rule. 68 Cal. App. 4th at 1270. No such conduct by a
clerk of court occurred in the case at bar, because the Attorney General never presented any complaint for
filing in Ms. Merritt’s case, as confirmed by the Criminal Division Court Supervisor. The fault in this case
lies only with the Attorney General, who could have complied with the law but did not.
2. The Rules Permitting Courts to Correct Their Own Clerical Errors Do Not Permit Correction of Litigant Errors.
Besides misrepresenting facts, the Attorney General also misrepresents or misunderstands the law,
particularly when claiming that courts in general, and this Court in particular, have the unbounded
discretion to “correct” the Attorney General’s failure to file an amended complaint. (Opposition at 4-5.)
The Attorney General’s quote taken from People v. Mitchell, 26 Cal. 4th 181, 185 (2001) expressly refers
to a trial court’s correction of an error in an abstract of judgment. Id. Further, the Mitchell case itself
concerned whether an appellate court should order the trial court to make a correction to an abstract of
judgment. Id. at 184-85. Each citation in the lengthy string cite in the Mitchell quote stands for the same
representative legal principle: “If the judgment entered in the minutes fails to reflect the judgment
pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect
the true facts.” People v. Rowland, 206 Cal.App.3d 119, 123–24 (Ct. App., 6. Dist. 1988) (citation
omitted). The Attorney General’s further citation to Witkin & Epstein (borrowed nearly verbatim from
People v. Trotter, 7 Cal. App. 4th 363, 370 (1992), without proper citation) (Opposition at 5), yields more
of the same. The court in People v. Trotter referred only to a court’s ability to correct an error on a verdict
form after the jury was discharged, where the court’s interlineation did not modify the jury’s verdict at all.
Id. at 369-70. Trotter does not stand for the proposition that a court, presiding over a criminal case, may
step in to correct a party’s (least of all a prosecutor’s) failure to meet a critical deadline. If the deadline
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DEFENDANT MERRITT’S REPLY IN SUPPORT OF HER MOTION TO DISMISS
of Sections 1007 and 1008 were not critical, the courts in Williams v. Superior Court and Osman would
not have ruled that the requirements of Sections 1007 and 1008 were mandatory (as fully explained in
Defendant Merritt’s Memorandum in support of her Motion to Dismiss).
Ultimately, the Attorney General’s repeated assertion that the issue here concerns only a minor,
technical, “clerical error,” or a “scrivener’s error” (Opposition at 5), is wrong both factually and legally.
That no amended complaint was filed against Ms. Merritt is emphatically not the Court’s error. Nor is it
the error of the Clerk of Court. There was no “scrivener’s error.” There was no second Amended
Complaint submitted for filing in Ms. Merritt’s case, on which a clerk, with notice to the Attorney General,
could have interlineated the correct case number. The Attorney General’s request of this Court to “correct”
his error is not proper. Instead, dismissal is the only legally cognizable remedy.
D. The Attorney General Has Provided No Authority for His Contention that Lack of
Prejudice Excuses His Statutory Noncompliance.
Even if the issues raised in Ms. Merritt’s motion to dismiss required consideration as to whether
her rights were substantially affected (Ms. Merritt disputes such a burden), as previously argued in Ms.
Merritt’s Memorandum in Support of her Motion to Dismiss, the courts in Williams v. Superior Court and
Osman have already ruled that the requirements of Sections 1007 and 1008 are mandatory. Should this
Court strip Ms. Merritt of the mandatory protections of Sections 1007 and 1008, her rights certainly would
be substantially prejudiced.
Moreover, the Attorney General is wrong on the law as to any burden on Ms. Merritt to show
prejudice. Ms. Merritt has timely objected to the Attorney General’s failure to meet the mandatory
requirements of Sections 1007 and 1008, and consequently she need not show any prejudice. See People
v. Wilson, 60 Cal. 2d 139 (1963). Where Section 1007’s deadline and Section 1008’s corresponding
penalty are mandatory, Ms. Merritt “ha[s] the right to have [Counts One through Fourteen] dismissed
on [her] motion.” See id. at 151 (emphasis added). Ms. Merritt properly brought her motion to dismiss in
a timely manner, and thus, “no further showing [is] required of [her]; in particular, [she is] not
required to affirmatively show that [she] ha[s] been prejudiced by the delay.” See id. at 151 (emphasis
added).
EXHIBIT A
1
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
HONORABLE CHRISTOPHER C. HITE, JUDGE PRESIDING
DEPARTMENT NO. 9
---oOo--- THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) ) Plaintiff, ) ) Court No. 2502505
) 17006621 vs. ) ) DAVID ROBERT DALEIDEN AND )SANDRA SUSAN MERRITT, ) ) Defendants. ) ______________________________)
REPORTER'S TRANSCRIPT OF PROCEEDINGS
Wednesday, June 21, 2017
Please note Government Code Section 69954(d):
"Any court, party, or person who has purchaseda transcript may, without paying a further fee tothe reporter, reproduce a copy or portion thereofas an exhibit pursuant to court order or rule, orfor internal use, but shall not otherwise provideor sell a copy or copies to any other party orperson."
Reported by: Janet S. Pond, CSR No. 5292, RMR, CRR Official Reporter
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A P P E A R A N C E S O F C O U N S E L
For the People: STATE OF CALIFORNIA, DEPARTMENT OF JUSTICE OFFICE OF THE ATTORNEY GENERAL BY: JOHNETTE JAURON, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 For Defendant David Daleiden:
STEVE COOLEY & ASSOCIATES BY: BRENTFORD J. FERREIRA, Attorney At Law 5318 E. 2nd Street, #399 Long Beach, CA 90803 For Defendant Sandra Merritt: LAW OFFICE OF NIC COCIS & ASSOCIATES BY: NIC COCIS, Attorney at Law 38975 Sky Canyon Drive, No. 211 Murrieta, CA 92563 LIBERTY COUNSEL BY: HORATIO G. MIHET, Attorney at Law (Pro Hac Vice) P. O. Box 540774 Orlando, FL 32854
---o0o---
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P R O C E E D I N G S
Wednesday, June 21, 2017
---o0o---
THE COURT: This is Lines 14 and 15, David Daleiden and
Sandra Merritt.
Counsel's appearance.
MS. JAURON: Johnette Jauron, Deputy Attorney General.
MR. FERREIRA: Brentford Ferreira for Mr. Daleiden.
MS. COCIS: Nic Cocis on behalf of Ms. Merritt.
Ms. Merritt is present out of custody.
THE COURT: Good morning, Mr. Daleiden, and good
morning, Ms. Merritt.
This matter is on for several different items.
The first thing the Court wanted to make sure to state
on the record is this matter has been referred to this court
by the presiding judge as well as the supervising judge of
the court for all purposes including and through trial. I
just want to make sure all counsel knew that.
And I take it that you were informed of that via email
through my clerk at some point.
We also have before us a motion for a pro hac vice
appearance by Mr. Mihet. And I did not have an opposition
to that; is that correct?
MS. JAURON: Correct, Your Honor.
THE COURT: So the motion with regard to the
pro hac vice is granted. Mr. Mihet has complied with the
rules set forth in California Rules of Court, Rule 9.40(e),
and appears to be competent and qualified to represent
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criminal complaint.
So, at a minimum, that's why I mention the initials and
maybe a more specific date stamp inside the video itself
which would -- time stamp, not date stamp -- time stamp
which would give us a clear indication who they're
contemplating.
So in the video, I don't want to be talking about this
individual when the AG's Office is talking about a different
individual.
MR. MIHET: It would be one thing if each video only
had one conversation in it, Judge. But even the ones that
have been provided to us have multiple, numerous
conversations in them. They may know who the person is but
we don't, and we need to.
MR. FERREIRA: And we now know that there were other
conversations that weren't provided to us with the same
people.
THE COURT: Ms. Jauron?
MS. JAURON: Your Honor, all of this sounds like
evidentiary issues that need to be hashed out at preliminary
hearing, certainly not a notice issue for the complaint.
THE COURT: All right.
I've heard and considered all of the arguments at this
time and reviewed all of the papers, and I appreciate the
arguments of all counsel and clarity with regards to the
issue.
At this time, contrary to counsel for Mr. Daleiden, the
Court does find good cause to exclude the names of the
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victims from the complaint at this time pursuant to Penal
Code Section 1054.7 and Alvarado vs. Superior Court, 2000,
23 Cal.4th 1121.
Based on the danger imposed upon the victims as set
forth in the sealed affidavit and recent allegations of
exposure of those individuals by Defendant Daleiden and his
attorneys in apparent violation of the federal injunction as
well as Judge Yaggy's order, the Court further finds good
cause to exclude the victims' names from the complaint based
on the possible compromise of other investigation by law
enforcement.
As I indicated, the Court is troubled with excluding
the names of the Does from the complaint and the factual
allegations associated with the counts.
The Court agrees with Defendant Merritt as well as
Defendant Daleiden that the informal discovery of the names
and the information associated with the counts are not part
of the complaint and that the defendant is entitled to
sufficient notice of the specific factual allegations based
on the circumstances of the case.
This Court does not and will not require the AG to
present its theory of the case in each of the counts, but it
must at least identify what acts are associated with each
count and the corresponding Doe for each count.
The simple use of the language of the statute under
these specific circumstances is insufficient notice.
The Court will hereby sustain the demurrer as to both
defendants with leave to amend within 10 calendar days as
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set forth in Penal Code Section 1007 as to the lack of
specificity as to each of the counts, with the exception of
Count 15.
Count 15 is sufficiently pled, and I believe that's the
conspiracy charge?
MS. JAURON: Yes, Your Honor.
THE COURT: The Court does believe that is sufficiently
pled and therefore any demurrer as to that count is
overruled.
As indicated above, the Court is not requiring the use
of the names of the victims in the complaint at this time,
just a clarification of the specific acts for each of the
individual counts, with the exception of Count 15, of which
the demurrer is overruled.
The Court will quickly address the issue of the federal
injunction, which I think was mentioned in the papers as
well.
The Court overrules any general demurrer to the
complaint based on the grounds that the federal injunction
somehow impedes the defendants' ability to receive a fair
preliminary hearing or trial. The Court agrees that certain
due process issues may arise depending on the disclosure of
the video evidence during the preliminary hearing and the
trial, but these are not matters that are resolved via
demurrer.
The only reasonable threat to the defendants and
defense counsel is the posting of the videos or the names of
the victims on a public access website. The use of the
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names of the victims and the videos during the preliminary
hearing and the trial does not pose the same threat.
The Court tentatively agrees that the AG would need to
disclose under protective order all of the videos obtained
in relationship to this case to the defendant and have that
available for use by the defense at any evidentiary hearing
subject to any relevancy or 352 exclusions.
Under these circumstances, the federal injunction does
not unreasonably impede the defendant from obtaining a fair
preliminary hearing or trial.
In addition, Mr. Daleiden brought a motion to stay
proceedings in relationship to the injunction as well. That
stay is denied. If the AG decides to file an amended
complaint in this case, which I assume it will, the
defendant may enter a plea to the amended complaint and
waive the 10-day or 60-day rule at that time, and the Court
will then entertain any reasonable continuance based on good
cause thereafter. But as far as now, the stay is denied.
MR. FERREIRA: Thank you.
THE COURT: With regard to the motion for sanctions and
referral to the State Bar, I will take brief arguments from
the AG and any response by the defense.
MS. JAURON: Your Honor, it sounds like an issue that
perhaps should be addressed later. Does the Court want to
deal with this now?
If we're going to be going into a new preliminary
hearing -- if the Court wants to start over again and
proceed in a manner that is appropriate, I am perfectly
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State of California ) ) County of San Francisco )
REPORTER'S CERTIFICATE
I, Janet S. Pond, CSR No. 5292, Official Court Reporter
for the Superior Court of California, County of San
Francisco, do hereby certify:
That I was present at the time of the above proceedings
and took down in machine shorthand notes all proceedings had
and testimony given;
That I thereafter transcribed said shorthand notes with
the aid of a computer;
That the above and foregoing is a full, true, and
correct transcription of said shorthand notes, and a full,
true and correct transcript of all proceedings had and
testimony taken;
That I am not a party to the action or related to a
party or counsel;
That I have no financial or other interest in the
outcome of the action.
Dated: June 23, 2017
________________________________ Janet S. Pond, CSR No. 5292
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EXHIBIT B