Occidental College subpoena: Motion to quash (text)

February 11, 2009

Hi ObamaIsAFraud2008 - clarified again for you. (2-24)

Ok since you can't download the pdf of Official Motion to quash (pdf) of the Occidental College subpoena (relevant text) / (Occidental College subpoena (pdf) of barry's academic and housing records below is an UNOFFICIAL text version and here's my understanding of it.

Scroll all the way down to the bottom to see the financial sanction footnote in red AS WRITTEN. It seems awfully desperate to me. barry has enough money to motion them to death.

I am always amazed by how the same bot tone comes through even in legal documents. My guess this was written by a woman who is infatuated with barry and thinks her efforts to protect! him from her fellow Americans who actually believe in the law - to the letter of the law - is going to be noticed. I do hope she is getting paid as much as her male counterparts.

MOTION TO QUASH

BACKGROUND

Petitioners filed this action on November 13, 2008, nine days after the November 4,2008 General Election. The Petition alleges that at least seventeen actions have been filed questioning whether the President is a "natural born citizen" under Article II, Section I, Clause 4 of the United States Constitution. (Pet. ff 62-63, 68, 73.) According to the Petition, these lawsuits suggest variously that although President Obama was bom a United States citizen he somehow lost this status by subsequently obtaining citizenship in Indonesia, or, alternatively, that he was actually born in Kenya and is therefore either a Kenyan or British citizen. (Id.fflf73,79-83.)

The Petition alleges that "[i]n the course of those lawsuits ... it has been determined that there exists no designated official in the federal government, or the government of the states, directly charged with the responsibility of determining whether any Presidential candidate meets the qualifications of Article H of the Constitution of the United States." (Id. f 73.)

The Petition then avers — without citation to any legal authority—that "[b]ased on all ofthe above [allegations], it is the duty of [the Secretary of State]... to obtain proper documentation of [former] Senator Obama's citizenship to confirm his eligibility" to serve as President. (Id. 84.)

It also claims that each California Elector has "an affirmative duty to discover whether the candidate for President for which the elector is seeking election is a 'natural bom' citizen."

The Petition prays for a peremptory writ directed to California Secretary of State Debra Bowen and to the California Electors.

Specifically, Petitioners seek to enjoin Secretary Bowen from "both certifying to the Governor the names of the California Electors, and from transmitting to each presidential Elector a Certificate of Election, until such documentary proof is produced and verified showing that [President Obama] is a 'natural born' citizen of the United States and does not hold citizenship in Indonesia, Kenya or Great Britain."

With respect to the California Electors, Petitioners demand an "order barring the California Electors from signing the Certificate of the Vote" pending production of the same "documentary proof." (Id.) But Petitioners admit in their Petition that Secretary Bowen and the California Electors will have discharged all duties associated with the November 2008 General Election on or before December 15, 2008 — which they in fact proceeded to do, without further objection or judicial action by Petitioners.

And it is judicially noticeable that President Obama and Vice President Biden have now been sworn into office.

Since filing suit nearly three months ago, Petitioners have made no effort whatsoever to obtain interlocutory relief. They originally noticed a hearing on the merits of the Petition for March 13, 2009, long after the California officials sued in this case completed all of their duties associated with the 2008 Presidential Election. This hearing date has since been continued by stipulation of all parties to allow the Court to first resolve three pending challenges to the sufficiency of Petitioners' pleadings: a Demurrer by Secretary Bowen; a Demurrer by President Obama,Vice President Biden, and 54 California Electors; and a Motion for Judgment on the Pleadings by California Elector Joe Perez.

Each of these motions identifies obvious legal deficiencies on the face of Petitioners' pleading, including the fact that Petitioners cannot identify any mandatory duty with which Respondents have failed to comply and the fact that the entire suit has long been moot. These three motions are set to be heard by the Court on March 13, 2009.

Nevertheless, on January 15 or 16,2009, Petitioners served the business records subpoena at issue in this motion on Occidental College. (Declaration of Fredric D. Woocher in Support of Motion to Quash ("Woocher Decl.") f 2 & Ex. 1.) On January 15, 2009, Petitioners served all Respondents, including President Obama, with a copy of the subpoena by regular U.S. Mail. (Id. U 3 & Ex. 2.)

After receiving the subpoena, on January 16, 2009, Mr. Woocher, counsel for President Obama,Vice President Biden, and the California Electors, emailed counsel for Petitioners to request that Petitioners "cancel or withdraw the subpoena, at least until such time as the Superior Court rules upon the pending demurrers and motion for judgment on the pleadings." {Id. U 4 & Ex.

Mr. Woocher made clear that "[s]uch cancellation would be without prejudice to [Petitioners'] righttore-issue the subpoena should the litigation remain alive following the court's ruling on those motions." (Id.) After receiving no response, Mr. Woocher again contacted counsel for Petitioners on January 27, 2009 to inquire whether they would agree to postpone the response to the subpoena until after the hearing on March 13,2009. (Id. 1 5 & Ex. 4.)

On February 2, 2009, counsel for Petitioners informed Mr. Woocher via email that Petitioners insisted on proceeding with the subpoena, thereby necessitating the filing of the instant motion. (Id. f 6 &Ex. 5.)

BECAUSE PETITIONERS FAILED TO COMPLY WITH CODE OF CIVIL PROCEDURE SECTION 1985.3,THE SUBPOENA IS DEFECTIVE AND MUST BE QUASHED.

As an initial matter, the subpoena is invalid for failure to abide by the strict service requirements of Code of Civil Procedure section 1985.3 ("Section 1985.3").

"Section 1985.3 protects personal records from discovery unless the requesting party complies with certain time and notice requirements." Sasson v.Katash, 146Cal. App. 3d 119,122 (1983); see also Lantzv.Superior Court, 28Cal.App.4th 1839,1848(1994).

One such requirement is that the subpoenaing party must serve the subpoena on the consumer at least five days before service on the custodian of records. Cal. Civ. Proc. Code § 1985.3(b)(3). If served by mail within this State, this time limit is extended pursuant to Code of Civil Procedure section 1013(a) to require service on the consumer at least ten days before service on the custodian of records. Id.; see also Cal.Civ.Proc. Code § 1013(a).

The subpoenaing party must also serve the custodian of records with proof of service of the required notice on the consumer whose records are at issue. Cal. Civ. Proc. Code§ 1985.3(c). The Civil Discovery Act also incorporates this same requirement, mandating that a subpoena for personal records be accompanied by a proof of service establishing that Section 985.3's consumer notice provisions have been satisfied. Cal. Civ. Proc. Code § 2020.410(d) Failure to comply with any of Section 1985.3's dictates "shall be sufficient basis for the witness to refuse to produce the personal records sought by the subpoena duces tecum." Cal. Civ. Proc. Code § 1985.3(k).

Petitioners readily acknowledge that the procedural protections of Section 1983.5 apply here. Indeed, they complied in part with Section 1985.3, subdivision (b), by serving on the President's counsel a "Notice to Consumer or Employee" as required by Section 1985.3. (See Woocher Decl. U 3 & Ex. 2.) They even attached to the subpoena served on Occidental College a "Certificate of Compliance," in which they purport to have complied with the statute's clear dictates. (Id.)

However, rather than mailing the Notice and a copy of the subpoena to the President's counsel ten days before the subpoena was served on third-party Occidental College, the Notice and subpoena were mailed either the day before or the very same day Occidental College was served. (Id.fflf2-3 & Exs. 1-2.) This is plainly insufficient under Section 1985.3.

Accordingly, Occidental College need not comply with the subpoena, Cal. Civ. Proc. Code § 1985.3(k), and the subpoena must be quashed.

THE TWO CATEGORIES OF DOCUMENTS PETITIONERS SEEK ARE VAGUE, OVERBROAD, AND ARE OF NO RELEVANCE WHATSOEVER TO THIS MOOT LITIGATION.

In addition to the fact that Petitioners failed to comply with Section 1985.3, the subpoena is also vague and overbroad, and seeks documents that are irrelevant to the limited scope of this writ action — an action which, in any event, has long since been moot.

"Although the scope of civil discovery is broad, it is not limitless." Calcor Space Facility, Inc. v.Superior Court, 53 Cal. App. 4th 216,223 (1997). Under Code of Civil Procedure section 2017.010, amatter is only discoverable if it is either "itself admissible in evidence or [if it] appears reasonably calculated to lead to the discovery of admissible evidence." Cal. Civ. Proc. Code § 2017.10; Pacific Architects Collaborative v.State of California, 100Cal. App. 3d 110,127 (1979)(affirming trial court order denying discovery that was irrelevant); see also Calcor Space Facility, 53 Cal. App. 4th at 223 (third party deposition subpoena for documents is invalid where subpoena was overbroad and sought irrelevant information).

Petitioners cannot satisfy this most basic requirement.

Petitioners' subpoena demands unrestricted access to all of President Obama's "academic and housing records"at Occidental College. But Petitioners could never establish the relevance of any such documents to the subject matter of the case at hand. See Southern Pac. Co. v. Superior Court, 15Cal. 2d 206,209 (1940) (it is court's task on such a motion "to examine the issues raised by the pleadings in the cause, and in light thereof to determine the apparent relevancy); CalcorSpace Facility, 53 Cal. App. 4th at 223 (propounding party"must be able to produce evidence from which a court may determine" whether documents sought are relevant) (emphasis in original).

The central issue in this lawsuit — putting aside the significant jurisdictional and timeliness questions — is whether any Respondent had a legal duty to demand proof of natural born citizenship from the Democratic Party's presidential nominee. None of the documents sought by Petitioners could possibly assist in answering this question. Cf.Shaffer v.Superior Court, 33 Cal.App.4th 993,999-1003 (1995) (former law firm client who brought malpractice action against firm claiming unconscionable rates was not entitled to discovery regarding amount paid by law firm to contract staff attorney because such information is irrelevant to unconscionability claim).

The irrelevance of the documents sought is further underscored by the fact that this lawsuit is unquestionably moot. All three pending motions by Respondents seek to dismiss this action in large part because Secretary Bowen and the California Electors have long since completed their respective legal duties in connection with the November 2008 General Election in California. Secretary Bowen already placed the candidates' names on the ballot and, of course, the November election has already taken place. The California Electors were certified by Secretary Bowen on December 1, 2008, and they met and cast their votes for President Obama and Vice President Biden on December 15,2008. The Governor of California certified those results and transmitted them to the President of the Senate on December 15,2008, and President Obama and Vice President Biden were sworn into office on or about January 20, 2009.

It is now far too late for a writ of mandate "barring Respondent Secretary of State ... from both certifying to the Governor the names of the California Electors, [and] from transmitting to each presidential Elector a Certificate of Election, and it is likewise too late for a "writ barring Respondent California Electors from signing the Certificate of Vote." (Pet. f 69.) Those are now completed acts. And there is nothing in President Obama's "academic and housing records" from thirty years ago that could in any way aid Petitioners in reviving their case. Cf. TerminalsEquipment Co., Inc. v.City and County of San Francisco, 221 Cal. App. 3d 234, 247 (1990) (denying additional discovery following sustaining of defendant's demurrer as irrelevant and stating that "if appellants were unable to state a viable cause of action on the basis of the facts already available to them, nothing in these disputed documents could do anything to change that")

CONCLUSION

The records Petitioners seek are of no relevance to this moot litigation, and Petitioners failed, in any event, to properly serve the subpoena and notice. The subpoena directed to Occidental College should therefore be quashed. Alternatively, this Court should issue an order directing that the deposition of the custodian of records of Occidental College not take place.

DATED: February 11, 2009

STRUMWASSER & WOOCHER LLP
Michael J. Strumwasser
Fredric D. Woocher
Aimee Dudovitz

10940 Wilshire Boulevard, Suite 2000
Los Angeles, California 90024
Telephone:
(310)576-1233
Facsimile:
(310)319-0156

Attorneys for Respondents President Barack Obama, vice President Joe Biden, and the California Elector

Respondent moving parties do not, with this motion, exercise their rights under Code of Civil Procedure sections 1987.2, 2025.410, and 2025.420 to seek recompense for their reasonable attorneys' fees and costs necessarily incurred in bringing this motion. However, Respondent moving may do so in the future if Petitioners continue to misuse the discovery process.

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Keyes v Bowen: Explanation and Links
11-13 Keyes v Bowen: Petition for Writ of Mandate

1-15 Occidental College Subpoena: Relevant text
1-15 Occidental College Subpoena: Official pdf

2-11 Occidental College Subpoena: Motion to Quash (text)
2-11 Occidental College Subpoena: Notice of Motion to Quash (pdf)
2-11 Occidental College Subpoena: Motion to Quash (pdf)
2-20 Occidental College Subpoena: Discussion of Motion to Quash

3-13 Scheduled Hearing

2-24 Keyes: "Obama is a radical Communist!"