Why DA's Palco suit was ill-advised
”All good things must come to an end” is an old saying we all know. With any luck, the same could be said of all bad things, and so it is with the People v. Pacific Lumber Company lawsuit filed by the Humboldt County district attorney.
After being dismissed by the trial court and then having been unanimously rejected by the appeals court, the California Supreme Court has driven a stake through the heart of this ill-advised lawsuit. On April 24, the Supreme Court denied District Attorney Gallegos' petition for review. It also denied his request to have the appellate court decision depublished.
The public deserves an explanation of what all this means.
Before that, I would like to make it clear that I in no way approve of Palco's behavior. I personally prosecuted them twice criminally (obtaining literally every last penny available as penalties under the 15 counts I charged collectively) and once civilly (against Scopac, actually), receiving $80,000 in a settlement, $35,000 of which I sent to schools in the Van Duzen watershed.
And I found Palco's behavior in the recall election astounding and shameful, an incredibly bad set of decisions to fund petition signers and more in an effort to drive out an elected official.
That said, Gallegos' decision to prosecute Palco was a political one, make no mistake. Political prosecutions are never a good idea.
Within days of taking office, Gallegos directed his chief investigator to conduct an investigation. When his investigators reported they could not find evidence of a crime, the suit was filed civilly instead. The day before it was filed, a member of a local watchdog organization sat in the DA's library and read the complaint.
The civil complaint was poorly charged, forcing Gallegos' office to twice amend it during trial. Even so, the trial court ultimately dismissed it on a “demurrer,” which is a motion asserting the case lacks the basic essentials to get to trial. The dismissal was “without leave to amend,” meaning the trial court found the allegations incapable of proceeding. The appellate court was even less kind.
Stating the rule that it must “give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded,” the appellate court examined the only two arguments Gallegos made: (1) the “litigation privilege” in Civil Code section 47(b), which is “absolute,” and (2) the Gallegos-named “right-to-lie” argument (the Noerr-Pennington doctrine, actually). Both went down in flames.
The idea in the “litigation privilege” is that those honestly in court should be allowed to make whatever claims they may without fear of then being sued simply for having made those claims. The principles are (1) protecting access to the courts, and (2) the “chilling effect” that such a fear would have on those with legitimate claims.
The appellate court looked at many cases, as well as the facts of the Palco case, and found that “the same chilling effect would occur here, we fear, were this (Palco) lawsuit to proceed.”
The “Noerr-Pennington doctrine” gives those who attempt to influence the government immunity from liability under federal antitrust law. There is a “sham exception” to this immunity, which Gallegos argued applied to Palco.
The appellate court “decline(d) to hold that the state's fraud-based allegations meet the requirements of the sham exception,” and held that Palco was “undoubtedly immune from liability under Noerr-Pennington.”
The appellate court closed its opinion noting that the court “must determine whether plaintiffs [the state] have demonstrated evidence which, if credited, would justify their prevailing at trial.” It then held that “for the reasons discussed above, we conclude the state's evidence, even if credited, would not justify its prevailing at trial. Further, we conclude the state has failed to prove, on its third try, a reasonable possibility that the (complaint)'s defect can be cured by amendment.”
In short, all arguments advanced by District Attorney Gallegos, both at trial and on appeal, were shot down in their entirety.
It is said that “bad facts make bad law.” And so Gallegos asked to have the appellate court's decision “depublished,” meaning that it would no longer be law. The Supreme Court declined, and we are left with “The People ex rel Paul V. Gallegos, as District Attorney v. the Pacific Lumber Company.”
Some may celebrate the end of this case, finding it bad, while others may lament, seeing the case as good. We are all still left deciding if we approve of further political prosecutions That, I submit, is bad.
Paul Hagen is an attorney in Eureka. He previously served as a deputy district attorney in four northern California counties, including Humboldt county. He resides in Eureka.
Paul Hagen
Article Launched: 05/01/2008 01:27:25 AM PDT
Showing posts with label PL Appeal. Show all posts
Showing posts with label PL Appeal. Show all posts
4.25.2008
TS - Supreme Court won't reverse Palco case decision
The California Supreme Court has refused to hear Humboldt County District Attorney Paul Gallegos' major fraud case against the Pacific Lumber Co.
The court turned down the DA's request to review a scalding decision handed down in January by the California Court of Appeals' First District.
”Further, we conclude the state has failed to prove, on its third try, a reasonable possibility that the operative pleading's defect can be cured by amendment,” the three-judge panel wrote for the First District.
The Supreme Court ruled without comment. It also denied Gallegos' request that the First District decision be depublished, which would have prevented it from being a precedent-setting opinion.
The 2002 suit alleged that Palco secured a overly liberal long-term logging plan when it agreed to sell the 7,400-acre Headwaters Forest and other groves for $480 million. The company submitted false data on landslides in one watershed and didn't correct the record until the last minute -- which prompted the California Department of Forestry to adopt a less stringent logging strategy, the complaint held.
The suit was filed shortly before an effort was launched to recall Gallegos, a campaign that was largely funded by Palco. The recall failed.
Palco is now in bankruptcy.
”The trial court, the appellate court and now the California Supreme Court have all recognized this case to be more an exercise in spite and sloganeering than an action of any substance or legal merit,” said Palco Vice President and General Counsel Frank Bacik.
Gallegos did not return the Times-Standard's phone call by deadline.
Humboldt County Superior Court visiting Judge Richard Freeborn threw out an amended complaint in 2005, writing that Gallegos didn't prove that Palco had scammed the government to gain an advantage over a competitor.
The appellate court determined that Palco's lobbying efforts with the state during the 1999 Headwaters negotiations led CDF to drop a stricter logging plan and adopt a more liberal one.
The so-called Noerr-Pennington Doctrine protects anyone petitioning the government or government agencies against civil liability. That doctrine prevails unless the actions taken during lobbying are a “sham.” Since Palco's efforts weren't intended to affect a competitor's business relationship, the appellate court determined, it didn't meet the definition of a sham.
Palco's communications with the CDF during the Headwaters negotiations -- whether fraudulent or not -- are privileged under state unfair competition laws, the appeals ruling reads. California Environmental Quality Act proceedings at the time were the right means to ferret out any false evidence, the First District judges wrote.
Supreme Court won't reverse Palco case decision
John Driscoll The Times-Standard
Article Launched: 04/25/2008 01:15:42 AM PDT
The court turned down the DA's request to review a scalding decision handed down in January by the California Court of Appeals' First District.
”Further, we conclude the state has failed to prove, on its third try, a reasonable possibility that the operative pleading's defect can be cured by amendment,” the three-judge panel wrote for the First District.
The Supreme Court ruled without comment. It also denied Gallegos' request that the First District decision be depublished, which would have prevented it from being a precedent-setting opinion.
The 2002 suit alleged that Palco secured a overly liberal long-term logging plan when it agreed to sell the 7,400-acre Headwaters Forest and other groves for $480 million. The company submitted false data on landslides in one watershed and didn't correct the record until the last minute -- which prompted the California Department of Forestry to adopt a less stringent logging strategy, the complaint held.
The suit was filed shortly before an effort was launched to recall Gallegos, a campaign that was largely funded by Palco. The recall failed.
Palco is now in bankruptcy.
”The trial court, the appellate court and now the California Supreme Court have all recognized this case to be more an exercise in spite and sloganeering than an action of any substance or legal merit,” said Palco Vice President and General Counsel Frank Bacik.
Gallegos did not return the Times-Standard's phone call by deadline.
Humboldt County Superior Court visiting Judge Richard Freeborn threw out an amended complaint in 2005, writing that Gallegos didn't prove that Palco had scammed the government to gain an advantage over a competitor.
The appellate court determined that Palco's lobbying efforts with the state during the 1999 Headwaters negotiations led CDF to drop a stricter logging plan and adopt a more liberal one.
The so-called Noerr-Pennington Doctrine protects anyone petitioning the government or government agencies against civil liability. That doctrine prevails unless the actions taken during lobbying are a “sham.” Since Palco's efforts weren't intended to affect a competitor's business relationship, the appellate court determined, it didn't meet the definition of a sham.
Palco's communications with the CDF during the Headwaters negotiations -- whether fraudulent or not -- are privileged under state unfair competition laws, the appeals ruling reads. California Environmental Quality Act proceedings at the time were the right means to ferret out any false evidence, the First District judges wrote.
Supreme Court won't reverse Palco case decision
John Driscoll The Times-Standard
Article Launched: 04/25/2008 01:15:42 AM PDT
ER - District Attorney Paul Gallegos' fraud lawsuit halted by California Supreme Court
Ending a five-year legal odyssey through the state’s court system, the California Supreme Court has refused to review Humboldt County District Attorney Paul Gallegos’ appeal of his fraud lawsuit against The Pacific Lumber Co.
The Supreme Court acted on Wednesday to deny the petition from Gallegos to review his appeal of the First District Court of Appeal’s ruling in January, which upheld a Humboldt County Superior Court ruling that tossed out his lawsuit.
The Supreme Court also denied his petition seeking depublication of the Appellate Court’s lengthy written ruling, which now becomes established case law.
With the high court’s ruling, Gallegos has no further ability to appeal.
Gallegos alleged in his original lawsuit filed in Humboldt County Superior Court in 2003 that PALCO intentionally committed fraud to increase timber harvesting when it manipulated reports during the environmental review phase of PALCO’s Sustained Yield Plan for the historic Headwaters Deal in 1999.
But in a 2005 decision, visiting Judge Richard Freeborn sustained a previous court ruling that Gallegos’ lawsuit had no legal basis and that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data were protected under California Civil Code “litigation privilege.”
Gallegos appealed Freeborn’s ruling to California’s First District Court of Appeals, which upheld the ruling that the fraud charges brought against PALCO under unfair competition laws weren’t legally sufficient to warrant a trial.
But going beyond just affirming the lower courts ruling, the appellate court justices published a rare and critical 23-page decision and opinion that stated Gallegos failed to prove that his case could be fixed to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”
Following that ruling, Gallegos held a news conference and adamantly defended his decision to pursue the lawsuit despite it being dismissed twice because the court found it had no legal merit.
Gallegos did not return a phone call to comment Thursday.
In a written statement Thursday, a PALCO official said Gallegos could not state a single valid legal claim even after the court gave him numerous opportunities to amend his complaint.
“The trial court, the appellate court and now the California Supreme Court have all recognized this case to be more an exercise in spite and sloganeering than an action of any substance or legal merit,” stated Frank Bacik, PALCO’s vice president and general counsel, who responded to the news in a statement Thursday.
“There’s nothing left now but to marvel at the truly irresponsible waste of public money, time and energy this case represents.”
District Attorney Paul Gallegos' fraud lawsuit halted by California Supreme Court
By NATHAN RUSHTON, The Eureka Reporter
Published: Apr 24 2008, 5:59 PM · Updated: Apr 25 2008, 12:31 AM
Last night Gallegos was on Channel 3 TV News saying that The Supreme Court didn't really reject his appeal, that they were just "too busy" to hear it. I'm not kidding.
The Supreme Court acted on Wednesday to deny the petition from Gallegos to review his appeal of the First District Court of Appeal’s ruling in January, which upheld a Humboldt County Superior Court ruling that tossed out his lawsuit.
The Supreme Court also denied his petition seeking depublication of the Appellate Court’s lengthy written ruling, which now becomes established case law.
With the high court’s ruling, Gallegos has no further ability to appeal.
Gallegos alleged in his original lawsuit filed in Humboldt County Superior Court in 2003 that PALCO intentionally committed fraud to increase timber harvesting when it manipulated reports during the environmental review phase of PALCO’s Sustained Yield Plan for the historic Headwaters Deal in 1999.
But in a 2005 decision, visiting Judge Richard Freeborn sustained a previous court ruling that Gallegos’ lawsuit had no legal basis and that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data were protected under California Civil Code “litigation privilege.”
Gallegos appealed Freeborn’s ruling to California’s First District Court of Appeals, which upheld the ruling that the fraud charges brought against PALCO under unfair competition laws weren’t legally sufficient to warrant a trial.
But going beyond just affirming the lower courts ruling, the appellate court justices published a rare and critical 23-page decision and opinion that stated Gallegos failed to prove that his case could be fixed to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”
Following that ruling, Gallegos held a news conference and adamantly defended his decision to pursue the lawsuit despite it being dismissed twice because the court found it had no legal merit.
Gallegos did not return a phone call to comment Thursday.
In a written statement Thursday, a PALCO official said Gallegos could not state a single valid legal claim even after the court gave him numerous opportunities to amend his complaint.
“The trial court, the appellate court and now the California Supreme Court have all recognized this case to be more an exercise in spite and sloganeering than an action of any substance or legal merit,” stated Frank Bacik, PALCO’s vice president and general counsel, who responded to the news in a statement Thursday.
“There’s nothing left now but to marvel at the truly irresponsible waste of public money, time and energy this case represents.”
District Attorney Paul Gallegos' fraud lawsuit halted by California Supreme Court
By NATHAN RUSHTON, The Eureka Reporter
Published: Apr 24 2008, 5:59 PM · Updated: Apr 25 2008, 12:31 AM
Last night Gallegos was on Channel 3 TV News saying that The Supreme Court didn't really reject his appeal, that they were just "too busy" to hear it. I'm not kidding.
3.04.2008
TS - Gallegos asks Supreme Court to review Palco ruling
Gallegos asks Supreme Court to review Palco ruling
Humboldt County District Attorney Paul Gallegos is asking the state Supreme Court to review an appellate court's ruling that allowed his fraud suit against the Pacific Lumber Co. to be tossed out. He also is requesting that the Supreme Court order “depublication” of the opinion.
”We would like the court to review it,” Gallegos said Monday.
Palco Vice President Frank Bacik said in a news release that the “filings contain a series of slogans that lack reason, explanation or basis for either depublication of the appellate court's opinion or grant by the Supreme Court for a review of that opinion.”
”The new filings appear in the form of vague assertions that everybody is wrong except Paul Gallegos. The trial court is wrong, the court of appeal is wrong, Palco is wrong,” Bacik said.
The lawsuit, filed in February 2003, claimed Palco submitted faulty studies during the Headwaters Forest negotiations to get the California Department of Forestry to adopt a less restrictive long-term logging plan. Gallegos' second amended complaint was thrown out of Humboldt County Superior Court by visiting Judge Richard Freeborn, a ruling upheld by the appeals court.
The logging plan was part of the agreement to sell the 7,400-acre Headwaters Forest and other groves for $480 million. Gallegos argued that the company secured it by submitting false data on landslides in one watershed and not submitting a correction until the last minute.
The appeals court judges determined that Palco's lobbying efforts with the state were the real force behind CDF's decision to drop the stricter logging plan and adopt a less restrictive one. They found the California Environmental Quality Act proceedings during the Headwaters discussions were the appropriate venue to consider if any evidence presented was false.
Those lobbying efforts are privileged under state unfair competition laws, the ruling reads. The court also determined that Palco is protected by the Noerr-Pennington Doctrine that shields anyone petitioning the government or government agencies against civil liability, unless they are engaged in a “sham.”
Palco's efforts didn't meet the definition of a sham, the judges wrote in the ruling.
The Times-Standard
Article Launched: 03/04/2008 01:21:16 AM PST
Humboldt County District Attorney Paul Gallegos is asking the state Supreme Court to review an appellate court's ruling that allowed his fraud suit against the Pacific Lumber Co. to be tossed out. He also is requesting that the Supreme Court order “depublication” of the opinion.
”We would like the court to review it,” Gallegos said Monday.
Palco Vice President Frank Bacik said in a news release that the “filings contain a series of slogans that lack reason, explanation or basis for either depublication of the appellate court's opinion or grant by the Supreme Court for a review of that opinion.”
”The new filings appear in the form of vague assertions that everybody is wrong except Paul Gallegos. The trial court is wrong, the court of appeal is wrong, Palco is wrong,” Bacik said.
The lawsuit, filed in February 2003, claimed Palco submitted faulty studies during the Headwaters Forest negotiations to get the California Department of Forestry to adopt a less restrictive long-term logging plan. Gallegos' second amended complaint was thrown out of Humboldt County Superior Court by visiting Judge Richard Freeborn, a ruling upheld by the appeals court.
The logging plan was part of the agreement to sell the 7,400-acre Headwaters Forest and other groves for $480 million. Gallegos argued that the company secured it by submitting false data on landslides in one watershed and not submitting a correction until the last minute.
The appeals court judges determined that Palco's lobbying efforts with the state were the real force behind CDF's decision to drop the stricter logging plan and adopt a less restrictive one. They found the California Environmental Quality Act proceedings during the Headwaters discussions were the appropriate venue to consider if any evidence presented was false.
Those lobbying efforts are privileged under state unfair competition laws, the ruling reads. The court also determined that Palco is protected by the Noerr-Pennington Doctrine that shields anyone petitioning the government or government agencies against civil liability, unless they are engaged in a “sham.”
Palco's efforts didn't meet the definition of a sham, the judges wrote in the ruling.
The Times-Standard
Article Launched: 03/04/2008 01:21:16 AM PST
ER - DA petitions Supreme Court
DA petitions Supreme Court
Humboldt County District Attorney Paul Gallegos is asking the California Supreme Court to review his fraud lawsuit against Pacific Lumber Co. that has failed three times to pass legal muster.
Gallegos said this time the influential environmental group Sierra Club is also asking the court to hear the case.
“We’ll see what happens,” Gallegos said in a phone interview Monday.
The district attorney’s case, filed in 2003 in Humboldt County Superior Court, and subsequent amended suits were dismissed on demurrer, which effectively throws out the suit on a lack of legal merit.
After hearing legal arguments from Gallegos and a city of San Francisco attorney on his behalf in December, the California Appellate Court justices blasted his case and concluded in a rare 23-page published ruling and opinion in January that Gallegos failed to prove — on his third attempt — any “reasonable possibility” that his case could be corrected to move forward.
Gallegos confirmed Monday that he has petitioned the state’s top court seeking judicial review of the Appellate Court’s ruling, which he wrote is in “clear error” and effectively denies the government a platform to prosecute cases where the underlying administrative proceedings were corrupt.
In addition to seeking judicial review, Gallegos is asking the Supreme Court to order the depublication of the appeal court’s opinion, which would prevent other courts from citing it as case law.
Gallegos’ suit alleges that PALCO intentionally committed fraud in an effort to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.
But the courts have maintained that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected by the “litigation privilege” that protects communications made as part of a judicial or quasi-judicial proceeding.
Gallegos argues that to grant immunity to an applicant who submits false information erodes the integrity of the system and disempowers the administrative agencies from fulfilling their mandate.
Except in certain death penalty cases, the California Constitution affords no automatic right to appeal before the Supreme Court, which is only granted as a matter of discretion, according to the Supreme Court Web site.
In his letter to the California Supreme Court, Gallegos said the “reasons why courts must shield litigants from derivative litigation are the very same reasons why courts must allow an exception to these evidentiary shields when the path to truth was muddied beyond the point of recourse.”
“In such an instance, a collateral attack under the (Unfair Competition Law) is the only form of equitable relief through which the government can stop an ongoing fraud,” Gallegos wrote.
In a response, PALCO Vice President and General Counsel Frank Bacik described Gallegos’ new filings as “vague assertions that everybody is wrong except Paul Gallegos.”
“The trial court is wrong, the court of appeal is wrong, Palco is wrong,” Bacik said.
Bacik said Gallegos argues that the Supreme Court should carve out an exception to the company’s constitutional right to petition administrative agencies, and also create a special provision for criminal prosecutors who feel like reopening final administrative and environmental review proceedings in order to have the last word on the accuracy and truthfulness of the process.
“His filings contain a series of slogans that lack reason, explanation or basis for either de-publication of the appellate court’s opinion or grant by the Supreme Court for a review of that opinion,” Bacik said.
As an example, Bacik cited Gallegos’ statement to the court that “the clear errors that the trial court committed and the appellate court affirmed obstruct not only the sanctity of 211,000 acres of Humboldt forest timberland, but also the very ‘paths which to lead to [sic] the ascertainment of truth.’”
“Whatever that means, it hardly presents a reasoned legal argument,” Bacik stated. “We’re eager to hear what the California Supreme Court makes of it, and interested to see how long Mr. Gallegos intends to continue beating this long-dead horse at considerable expense to the taxpayers of Humboldt County.”
It is unclear how much the five-year legal battle has cost taxpayers because Gallegos indicated in an e-mail correspondence previously that his office doesn’t keep such records.
“We have an overall budget,” Gallegos wrote. “There are attorney hours, which we don’t keep. I do not believe we had any other costs.”
Gallegos indicated he is still waiting to receive PALCO’s claim of costs, which the court ruled the county would have to pay.
PALCO officials declined to disclose the amount of legal fees it has incurred defending the lawsuit.
By NATHAN RUSHTON, The Eureka Reporter
Published: Mar 3 2008, 10:23 PM
Humboldt County District Attorney Paul Gallegos is asking the California Supreme Court to review his fraud lawsuit against Pacific Lumber Co. that has failed three times to pass legal muster.
Gallegos said this time the influential environmental group Sierra Club is also asking the court to hear the case.
“We’ll see what happens,” Gallegos said in a phone interview Monday.
The district attorney’s case, filed in 2003 in Humboldt County Superior Court, and subsequent amended suits were dismissed on demurrer, which effectively throws out the suit on a lack of legal merit.
After hearing legal arguments from Gallegos and a city of San Francisco attorney on his behalf in December, the California Appellate Court justices blasted his case and concluded in a rare 23-page published ruling and opinion in January that Gallegos failed to prove — on his third attempt — any “reasonable possibility” that his case could be corrected to move forward.
Gallegos confirmed Monday that he has petitioned the state’s top court seeking judicial review of the Appellate Court’s ruling, which he wrote is in “clear error” and effectively denies the government a platform to prosecute cases where the underlying administrative proceedings were corrupt.
In addition to seeking judicial review, Gallegos is asking the Supreme Court to order the depublication of the appeal court’s opinion, which would prevent other courts from citing it as case law.
Gallegos’ suit alleges that PALCO intentionally committed fraud in an effort to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.
But the courts have maintained that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected by the “litigation privilege” that protects communications made as part of a judicial or quasi-judicial proceeding.
Gallegos argues that to grant immunity to an applicant who submits false information erodes the integrity of the system and disempowers the administrative agencies from fulfilling their mandate.
Except in certain death penalty cases, the California Constitution affords no automatic right to appeal before the Supreme Court, which is only granted as a matter of discretion, according to the Supreme Court Web site.
In his letter to the California Supreme Court, Gallegos said the “reasons why courts must shield litigants from derivative litigation are the very same reasons why courts must allow an exception to these evidentiary shields when the path to truth was muddied beyond the point of recourse.”
“In such an instance, a collateral attack under the (Unfair Competition Law) is the only form of equitable relief through which the government can stop an ongoing fraud,” Gallegos wrote.
In a response, PALCO Vice President and General Counsel Frank Bacik described Gallegos’ new filings as “vague assertions that everybody is wrong except Paul Gallegos.”
“The trial court is wrong, the court of appeal is wrong, Palco is wrong,” Bacik said.
Bacik said Gallegos argues that the Supreme Court should carve out an exception to the company’s constitutional right to petition administrative agencies, and also create a special provision for criminal prosecutors who feel like reopening final administrative and environmental review proceedings in order to have the last word on the accuracy and truthfulness of the process.
“His filings contain a series of slogans that lack reason, explanation or basis for either de-publication of the appellate court’s opinion or grant by the Supreme Court for a review of that opinion,” Bacik said.
As an example, Bacik cited Gallegos’ statement to the court that “the clear errors that the trial court committed and the appellate court affirmed obstruct not only the sanctity of 211,000 acres of Humboldt forest timberland, but also the very ‘paths which to lead to [sic] the ascertainment of truth.’”
“Whatever that means, it hardly presents a reasoned legal argument,” Bacik stated. “We’re eager to hear what the California Supreme Court makes of it, and interested to see how long Mr. Gallegos intends to continue beating this long-dead horse at considerable expense to the taxpayers of Humboldt County.”
It is unclear how much the five-year legal battle has cost taxpayers because Gallegos indicated in an e-mail correspondence previously that his office doesn’t keep such records.
“We have an overall budget,” Gallegos wrote. “There are attorney hours, which we don’t keep. I do not believe we had any other costs.”
Gallegos indicated he is still waiting to receive PALCO’s claim of costs, which the court ruled the county would have to pay.
PALCO officials declined to disclose the amount of legal fees it has incurred defending the lawsuit.
By NATHAN RUSHTON, The Eureka Reporter
Published: Mar 3 2008, 10:23 PM
2.05.2008
Ken Miller Op-Ed - He really wants his Palco suit to keep going
Real value of DA's suit vs. Palco yet to come?
Ken Miller for The Times-Standard
Article Launched: 02/03/2008 01:30:26 AM PST
Your editorial of Jan. 25, “An end to the saga,” criticizes Mr. Gallegos instead of the court's decision, or Maxxam.
It is ironic that the Times-Standard blames Mr. Gallegos for an “ill-thought-out attack on Humboldt County's historical way of life, and on one of the county's main economic engines.” Isn't it Hurwitz who is attacking? After all, the Headwaters Deal secured for Hurwitz a billion-dollar refinance that our watersheds could not afford, with bankruptcy of that venerable “engine” -- and our watersheds -- as the predicted results.
Does anyone doubt Pacific Lumber committed fraud? How else do you so deplete such a rich resource so rapidly, and wreak so much social, economic and environmental havoc, and get away with it?
The court's decision in the Pacific Lumber case crystallizes a frightening expansion of the “right to lie,” so that the successful cheater (as opposed to one who is caught during the proceeding) is immune from any legal consequences for lying in most government proceedings. The rationale is that the protection of free speech, and finality in permitting processes, are worth the damages resulting from undetected deception.
Responsible
Advertisement
government agency personnel, already stretched beyond their limits, rely upon compliance with laws that deter, not encourage fraud.
PL is now trying to use the court's decision to stop the Water Board from regulating them. The court concluded that if any part of the state government agreed to the deal, all parts are presumed to have agreed, and therefore must defend it -- including the Water Board, which disagreed, and has been trying unsuccessfully to make PL do something about the nuisance flooding in Freshwater and Elk River.
Analogously, the court determined that as part of the government, the DA -- who never participated in any part of the Headwaters proceedings -- was obligated to have discovered the alleged fraud and to have acted during the Draft Environmental Impact Report (DEIR) or forever defend, not attack, the deal. The implications of this are alarming, especially if fraud is involved.
It is also disturbing that the court's determination -- that PL's lobbying efforts, not the alleged fraud, resulted in the company's success in obtaining a sustained yield plan (SYP) with harvest volumes that finally finished off the company and our watersheds -- was based on fundamental misunderstandings of fact by the judges that could have been avoided in a fair trial.
PL allegedly hid significant new information that proved that their proposed SYP harvest rates would violate water laws, in order to avoid having to recirculate the DEIR, thereby allegedly depriving the public of a legitimate process.
PL had the information over six weeks prior to submitting it, according to the consultant who analyzed the actual data. When PL did turn it in, to officials uninvolved in the process, it was too late to influence the DEIR, which was therefore based on incorrect landslide data. The court did not understand the significance of this.
Recirculation would have meant that all the scientists, agencies, affected residents and interested public weighing in on PL's harvests rates, methods, and proposed mitigations, would have had powerful, irrefutable evidence from PL's own surveys and consultants that PL's proposed logging plans in the SYP were unsustainable and unlawful.
The Mutual Defense Pact (MDP) of the Headwaters Agreement bound the resource agencies to defend the agreement instead of the people, so our government personnel collaborated with PL to avoid the time-consuming recirculation, and keep the March 1 deadline.
Although the political momentum for a Headwaters deal was enormous, PL's lobbying efforts allegedly would have been thwarted by a reanalyzed EIR containing the “corrected” landslide conclusions from Jordan Creek, according to then California Department of Forestry (CDF) chief Richard Wilson.
Soon after the deal was signed, Jim Branham, a key figure in the Headwaters Deal for the California Resources Agency, and Craig Anthony from CDF, joined the PL team, both from lead agencies for the state in the EIR process.
The Appellate Court misconstrued the agencies' roles as independent and unconflicted; but in compliance with the MDP, these agencies have defended PL from the opposition of their critics, including affected watershed residents and others, agency personnel and the DA.
The real value of the suit, and of Mr. Gallegos' foresight in clarifying the damaging consequences of this immunity to our watersheds and workforce, will be if the Legislature makes a “successful” cheater liable, not immune, allowing government to protect us effectively. The court's decision included that advice from the state Supreme Court.
Ken Miller lives in McKinleyville.
Ken Miller for The Times-Standard
Article Launched: 02/03/2008 01:30:26 AM PST
Your editorial of Jan. 25, “An end to the saga,” criticizes Mr. Gallegos instead of the court's decision, or Maxxam.
It is ironic that the Times-Standard blames Mr. Gallegos for an “ill-thought-out attack on Humboldt County's historical way of life, and on one of the county's main economic engines.” Isn't it Hurwitz who is attacking? After all, the Headwaters Deal secured for Hurwitz a billion-dollar refinance that our watersheds could not afford, with bankruptcy of that venerable “engine” -- and our watersheds -- as the predicted results.
Does anyone doubt Pacific Lumber committed fraud? How else do you so deplete such a rich resource so rapidly, and wreak so much social, economic and environmental havoc, and get away with it?
The court's decision in the Pacific Lumber case crystallizes a frightening expansion of the “right to lie,” so that the successful cheater (as opposed to one who is caught during the proceeding) is immune from any legal consequences for lying in most government proceedings. The rationale is that the protection of free speech, and finality in permitting processes, are worth the damages resulting from undetected deception.
Responsible
Advertisement
government agency personnel, already stretched beyond their limits, rely upon compliance with laws that deter, not encourage fraud.
PL is now trying to use the court's decision to stop the Water Board from regulating them. The court concluded that if any part of the state government agreed to the deal, all parts are presumed to have agreed, and therefore must defend it -- including the Water Board, which disagreed, and has been trying unsuccessfully to make PL do something about the nuisance flooding in Freshwater and Elk River.
Analogously, the court determined that as part of the government, the DA -- who never participated in any part of the Headwaters proceedings -- was obligated to have discovered the alleged fraud and to have acted during the Draft Environmental Impact Report (DEIR) or forever defend, not attack, the deal. The implications of this are alarming, especially if fraud is involved.
It is also disturbing that the court's determination -- that PL's lobbying efforts, not the alleged fraud, resulted in the company's success in obtaining a sustained yield plan (SYP) with harvest volumes that finally finished off the company and our watersheds -- was based on fundamental misunderstandings of fact by the judges that could have been avoided in a fair trial.
PL allegedly hid significant new information that proved that their proposed SYP harvest rates would violate water laws, in order to avoid having to recirculate the DEIR, thereby allegedly depriving the public of a legitimate process.
PL had the information over six weeks prior to submitting it, according to the consultant who analyzed the actual data. When PL did turn it in, to officials uninvolved in the process, it was too late to influence the DEIR, which was therefore based on incorrect landslide data. The court did not understand the significance of this.
Recirculation would have meant that all the scientists, agencies, affected residents and interested public weighing in on PL's harvests rates, methods, and proposed mitigations, would have had powerful, irrefutable evidence from PL's own surveys and consultants that PL's proposed logging plans in the SYP were unsustainable and unlawful.
The Mutual Defense Pact (MDP) of the Headwaters Agreement bound the resource agencies to defend the agreement instead of the people, so our government personnel collaborated with PL to avoid the time-consuming recirculation, and keep the March 1 deadline.
Although the political momentum for a Headwaters deal was enormous, PL's lobbying efforts allegedly would have been thwarted by a reanalyzed EIR containing the “corrected” landslide conclusions from Jordan Creek, according to then California Department of Forestry (CDF) chief Richard Wilson.
Soon after the deal was signed, Jim Branham, a key figure in the Headwaters Deal for the California Resources Agency, and Craig Anthony from CDF, joined the PL team, both from lead agencies for the state in the EIR process.
The Appellate Court misconstrued the agencies' roles as independent and unconflicted; but in compliance with the MDP, these agencies have defended PL from the opposition of their critics, including affected watershed residents and others, agency personnel and the DA.
The real value of the suit, and of Mr. Gallegos' foresight in clarifying the damaging consequences of this immunity to our watersheds and workforce, will be if the Legislature makes a “successful” cheater liable, not immune, allowing government to protect us effectively. The court's decision included that advice from the state Supreme Court.
Ken Miller lives in McKinleyville.
Nauseating Op-Ed by yougofree.com Schwartz.
ooks like Ken Miller and crew are pushing Gallegos into appealing his piece of shit Palco suit. It's not enough that the case has been thrown out, what is it, three times now? Miller & Co. won't give up. How else do you explain Jeffrey "yougofree.com" Scwartz buttering Gallegos up, telling him (and you) how fabulous he looks in those silky golden, jewel-encrusted robes they have created for him, in the hopes that he will parade into court yet again without realizing he is buck-naked.
This nauseating piece of - ummmm, fiction demands a response. It's time to make the real record clear. I'm going to need more than 750 words, Mr. Somerville.
Paul Gallegos: The beginning of an era
Jeffrey Schwartz
Article Launched: 02/05/2008 01:15:29 AM PST
Recent editorials in the Times-Standard and North Coast Journal make Paul Gallegos out to be a one-trick pony -- the Palco lawsuit.
The T-S said that his legacy as the Humboldt County DA rested on his suit against Pacific Lumber. Hank Sims, in his Town Dandy column said that Gallegos' “whole career as a prosecutor” had been tied up with the suit and said that the state appellate court has now “erased his whole reason for being.” (”An end to a saga,” Times-Standard, Jan. 25; “Full circle,” Hank Sims, North Coast Journal, Jan. 17.)
But Gallegos is no one-trick pony, and anyone who thinks so hasn't paid attention to what has gone on inside the DA's office.
Paul Gallegos entered office more than five years ago. Since then he has turned the DA's role into what it should be, the protector of all people of Humboldt County and their interests. That means more than simply prosecuting drug dealers, common thieves and violent offenders. Of course, that takes priority. But the district attorney's office under Gallegos is more than that.
Gallegos has gone after miscreants in the business community, corrupt politicians, environmental polluters and criminally negligent nursing home operators. He stands out among virtually every other district attorney in the state who limits their offices to prosecuting common criminals.
The Times-Standard noted that some people in the community saw Gallegos' suit against Palco as an “ill-thought-out attack on Humboldt County's historical way of life.” Paul Gallegos' utopian vision was, and still is, to expand the office's charge to include the prosecution of those “historical” good businessmen and women and politicians who violate laws, so rarely enforced that they seem to be on the books for show.
The advocates of Humboldt's “historical way of life” want Gallegos to do nothing but go after homeless drug addicts who steal bags of Top Ramen from Winco or college students who grow marijuana. Concentrating on minor criminals would keep him from concentrating on bigger fish -- crooked business people and politicians and anti-environmentalists.
You don't win every murder case that comes along, and you don't win every Palco case that comes along, but that does not mean you give up. (By the way, Paul Gallegos won every homicide case he tried and every other major case he tried since taking office.)
Gallegos was the first person to challenge successfully Humboldt's historical values when he won election three times, despite the historical power base fighting like rabid dogs to stop him. While they could not stop him at the polls, they have been successful stopping him at the courthouse steps so far.
Have you noticed that the non-historical cases he brought -- the cases against Debbie August and Palco, to name two -- never got past Humboldt's historical power base (the judiciary, the newspapers and the local law makers) and thus never reached a jury, which would have been made up largely of people who elected him.
When discussing advocates of Humboldt's “historical way of life,” the Times-Standard should keep in mind that Humboldt's “historical” way of life included the decimation of the Native American population, much like the South's “historical” way of life included the lynching of African Americans.
But don't bet on Gallegos to abandon his mandate to fight Humboldt's historical values and run the DA's office the way a DA's office is supposed to be run, i.e. protecting all of the people of Humboldt County, regardless of an appellate court decision on one case.
The “historical” people of Humboldt County better get used to the idea that according to the Gallegos vision of justice for all, lawbreakers of all stripes should wear prison stripes. Gallegos believes that crooked politicians, business people, lumber executives and nursing home operators should sit on the same cold jail bench alongside shoplifters, child molesters and murderers.
Paul Gallegos represents Humboldt County's contemporary values, not its historical values.
Jeffrey Schwartz is an Arcata attorney and former prosecutor at the Humboldt County District Attorney's Office. He can be reached at jdsarcata@yahoo.com.
***
We'll have to take this one point by point, and see if there are ANY true statements in this piece.
This nauseating piece of - ummmm, fiction demands a response. It's time to make the real record clear. I'm going to need more than 750 words, Mr. Somerville.
Paul Gallegos: The beginning of an era
Jeffrey Schwartz
Article Launched: 02/05/2008 01:15:29 AM PST
Recent editorials in the Times-Standard and North Coast Journal make Paul Gallegos out to be a one-trick pony -- the Palco lawsuit.
The T-S said that his legacy as the Humboldt County DA rested on his suit against Pacific Lumber. Hank Sims, in his Town Dandy column said that Gallegos' “whole career as a prosecutor” had been tied up with the suit and said that the state appellate court has now “erased his whole reason for being.” (”An end to a saga,” Times-Standard, Jan. 25; “Full circle,” Hank Sims, North Coast Journal, Jan. 17.)
But Gallegos is no one-trick pony, and anyone who thinks so hasn't paid attention to what has gone on inside the DA's office.
Paul Gallegos entered office more than five years ago. Since then he has turned the DA's role into what it should be, the protector of all people of Humboldt County and their interests. That means more than simply prosecuting drug dealers, common thieves and violent offenders. Of course, that takes priority. But the district attorney's office under Gallegos is more than that.
Gallegos has gone after miscreants in the business community, corrupt politicians, environmental polluters and criminally negligent nursing home operators. He stands out among virtually every other district attorney in the state who limits their offices to prosecuting common criminals.
The Times-Standard noted that some people in the community saw Gallegos' suit against Palco as an “ill-thought-out attack on Humboldt County's historical way of life.” Paul Gallegos' utopian vision was, and still is, to expand the office's charge to include the prosecution of those “historical” good businessmen and women and politicians who violate laws, so rarely enforced that they seem to be on the books for show.
The advocates of Humboldt's “historical way of life” want Gallegos to do nothing but go after homeless drug addicts who steal bags of Top Ramen from Winco or college students who grow marijuana. Concentrating on minor criminals would keep him from concentrating on bigger fish -- crooked business people and politicians and anti-environmentalists.
You don't win every murder case that comes along, and you don't win every Palco case that comes along, but that does not mean you give up. (By the way, Paul Gallegos won every homicide case he tried and every other major case he tried since taking office.)
Gallegos was the first person to challenge successfully Humboldt's historical values when he won election three times, despite the historical power base fighting like rabid dogs to stop him. While they could not stop him at the polls, they have been successful stopping him at the courthouse steps so far.
Have you noticed that the non-historical cases he brought -- the cases against Debbie August and Palco, to name two -- never got past Humboldt's historical power base (the judiciary, the newspapers and the local law makers) and thus never reached a jury, which would have been made up largely of people who elected him.
When discussing advocates of Humboldt's “historical way of life,” the Times-Standard should keep in mind that Humboldt's “historical” way of life included the decimation of the Native American population, much like the South's “historical” way of life included the lynching of African Americans.
But don't bet on Gallegos to abandon his mandate to fight Humboldt's historical values and run the DA's office the way a DA's office is supposed to be run, i.e. protecting all of the people of Humboldt County, regardless of an appellate court decision on one case.
The “historical” people of Humboldt County better get used to the idea that according to the Gallegos vision of justice for all, lawbreakers of all stripes should wear prison stripes. Gallegos believes that crooked politicians, business people, lumber executives and nursing home operators should sit on the same cold jail bench alongside shoplifters, child molesters and murderers.
Paul Gallegos represents Humboldt County's contemporary values, not its historical values.
Jeffrey Schwartz is an Arcata attorney and former prosecutor at the Humboldt County District Attorney's Office. He can be reached at jdsarcata@yahoo.com.
***
We'll have to take this one point by point, and see if there are ANY true statements in this piece.
1.12.2008
Metropolitan News-Enterprise
Friday, January 11, 2008
Court Tosses Unfair Competition Suit Over Timber Harvesting
By KENNETH OFGANG, Staff Writer
The First District Court of Appeal yesterday affirmed a Humboldt Superior Court judge’s ruling throwing out a lawsuit in which the Humboldt County district attorney claimed The Pacific Lumber Company made misrepresentations and concealed crucial facts during an environmental review of its plan to harvest timber under the Headwaters Agreement.
Under the agreement, brokered by Democratic U.S. Sen. Dianne Feinstein, Maxxam Incorporated, which acquired Pacific Lumber in 1986, agreed to sell the Headwaters Forest—7,500 acres of environmentally sensitive old-growth redwoods—to the government for more than $300 million.
In turn, the state and federal governments agreed that Pacific Lumber could log its remaining acreage in the area, more than 200,000 acres, subject to environmental requirements reviewable under state law, including plans for preservation of habitat for the imperiled marbled murrelet and the northern spotted owl, prevention of excessive logging and protection of streams.
Pursuant to that agreement, the California Department of Forestry and Fire Protection certified an environmental impact report in 1999 and approved the company’s sustained yield and habitat conservation plans. Those approvals are the subject of separate litigation now pending before the state Supreme Court.
Yesterday’s ruling stems from a suit by District Attorney Paul Gallegos, brought under the Unfair Competition Law. Gallegos claims the company submitted a report containing false data in order to obtain approval from the CDF for an increased rate of timber harvesting and to ensure decreased environmental mitigation requirements.
Gallegos said the false data was submitted to conceal a finding by a consultant hired by Pacific Lumber that new timber harvesting could trigger increased landslide frequency in the Bear Creek and Elk River watersheds.
Worried such a finding would result in issuance of permits for lower rates of harvesting, and thus would hinder its ability to meet certain of its financial obligations, Pacific Lumber devised a scheme to submit false data for a watershed adjacent to Bear Creek, which indicated, contrary to the Bear Creek and Elk River finding, that new harvesting would not likely trigger increased landslide frequency, the district attorney alleged.
But Superior Court Judge Richard L. Freeborn sustained the company’s demurrer, ruling that even if the allegations were true, the conduct was absolutely privileged under Civil Code Sec. 47(b) because it occurred in connection with administrative proceedings under the California Environmental Quality Act.
Alameda Superior Court Judge Jeffrey Horner, sitting on assignment in the Court of Appeal’s Div. Three, said the trial judge was correct. Horner rejected Gallegos’ contention that the litigation privilege does not apply in an action brought under the UCL.
Horner cited Rubin v. Green (1993) 4 Cal.4th 1187, in which the court held that the litigation privilege barred a mobilehome park owner’s suit charging a tenant and the tenant’s lawyers with violating the UCL in connection with solicitation of potential plaintiffs for litigation against the park owner.
Horner rejected Gallegos’ attempt to distinguish Rubin on the ground that he was not a party to the CEQA proceedings, and that UCL actions brought by public prosecutors are distinguishable from those brought by private litigants.
Horner noted that the state was a party to the CEQA proceedings, and that the attorney general is in fact defending the actions of the CDF and other involved agencies in the case before the Supreme Court. And there is nothing to indicate that the Legislature intended to exempt public prosecutors bringing UCL suits from the litigation privilege, the justice said.
The case is People ex rel. Gallegos v. The Pacific Lumber Company, 07 S.O.S. 92.
Copyright 2008, Metropolitan News Company
Friday, January 11, 2008
Court Tosses Unfair Competition Suit Over Timber Harvesting
By KENNETH OFGANG, Staff Writer
The First District Court of Appeal yesterday affirmed a Humboldt Superior Court judge’s ruling throwing out a lawsuit in which the Humboldt County district attorney claimed The Pacific Lumber Company made misrepresentations and concealed crucial facts during an environmental review of its plan to harvest timber under the Headwaters Agreement.
Under the agreement, brokered by Democratic U.S. Sen. Dianne Feinstein, Maxxam Incorporated, which acquired Pacific Lumber in 1986, agreed to sell the Headwaters Forest—7,500 acres of environmentally sensitive old-growth redwoods—to the government for more than $300 million.
In turn, the state and federal governments agreed that Pacific Lumber could log its remaining acreage in the area, more than 200,000 acres, subject to environmental requirements reviewable under state law, including plans for preservation of habitat for the imperiled marbled murrelet and the northern spotted owl, prevention of excessive logging and protection of streams.
Pursuant to that agreement, the California Department of Forestry and Fire Protection certified an environmental impact report in 1999 and approved the company’s sustained yield and habitat conservation plans. Those approvals are the subject of separate litigation now pending before the state Supreme Court.
Yesterday’s ruling stems from a suit by District Attorney Paul Gallegos, brought under the Unfair Competition Law. Gallegos claims the company submitted a report containing false data in order to obtain approval from the CDF for an increased rate of timber harvesting and to ensure decreased environmental mitigation requirements.
Gallegos said the false data was submitted to conceal a finding by a consultant hired by Pacific Lumber that new timber harvesting could trigger increased landslide frequency in the Bear Creek and Elk River watersheds.
Worried such a finding would result in issuance of permits for lower rates of harvesting, and thus would hinder its ability to meet certain of its financial obligations, Pacific Lumber devised a scheme to submit false data for a watershed adjacent to Bear Creek, which indicated, contrary to the Bear Creek and Elk River finding, that new harvesting would not likely trigger increased landslide frequency, the district attorney alleged.
But Superior Court Judge Richard L. Freeborn sustained the company’s demurrer, ruling that even if the allegations were true, the conduct was absolutely privileged under Civil Code Sec. 47(b) because it occurred in connection with administrative proceedings under the California Environmental Quality Act.
Alameda Superior Court Judge Jeffrey Horner, sitting on assignment in the Court of Appeal’s Div. Three, said the trial judge was correct. Horner rejected Gallegos’ contention that the litigation privilege does not apply in an action brought under the UCL.
Horner cited Rubin v. Green (1993) 4 Cal.4th 1187, in which the court held that the litigation privilege barred a mobilehome park owner’s suit charging a tenant and the tenant’s lawyers with violating the UCL in connection with solicitation of potential plaintiffs for litigation against the park owner.
Horner rejected Gallegos’ attempt to distinguish Rubin on the ground that he was not a party to the CEQA proceedings, and that UCL actions brought by public prosecutors are distinguishable from those brought by private litigants.
Horner noted that the state was a party to the CEQA proceedings, and that the attorney general is in fact defending the actions of the CDF and other involved agencies in the case before the Supreme Court. And there is nothing to indicate that the Legislature intended to exempt public prosecutors bringing UCL suits from the litigation privilege, the justice said.
The case is People ex rel. Gallegos v. The Pacific Lumber Company, 07 S.O.S. 92.
Copyright 2008, Metropolitan News Company
TS - DA largely resigned to Palco ruling
DA largely resigned to Palco ruling
John Driscoll The Times-Standard
Article Launched: 01/12/2008 01:21:18 AM PST
Humboldt County District Attorney Paul Gallegos said he disagrees -- but respects -- a state appellate court's ruling allowing his hallmark fraud suit against the Pacific Lumber Co. to be tossed out.
At a press conference Friday, Gallegos said that the California 1st District Court of Appeal upheld privileges that originate in the First Amendment.
”Certainly I understand the public policy issues behind those privileges,” Gallegos said.
But he said that there is no societal value in fraud. While he believes the case looks into a new area of law, he said it is unlikely that he will petition the California Supreme Court in the matter.
The lawsuit, filed in February 2003, claimed Palco submitted faulty studies during the Headwaters Forest negotiations to get the California Department of Forestry to adopt a less restrictive long-term logging plan. Gallegos' second amended complaint was thrown out of Humboldt County Superior Court by visiting Judge Richard Freeborn, a ruling upheld by the appeals court.
The logging plan was part of the agreement to sell the 7,400-acre Headwaters Forest and other groves for $480 million. Gallegos argued that the company secured it by submitting false data on landslides in one watershed and not submitting a correction until the last minute.
Palco's lobbying efforts with the state were the real force behind CDF's decision to drop the stricter logging plan and adopt a less restrictive one, the appeals court judges determined. The California Environmental Quality Act proceedings during the Headwaters discussions were the appropriate venue to consider if any evidence presented was false, they wrote.
Those lobbying efforts are privileged under state unfair competition laws, the ruling reads. The court also determined that Palco is protected by the Noerr-Pennington Doctrine that shields anyone petitioning the government or government agencies against civil liability, unless they are engaged in a “sham.”
But Palco's efforts didn't meet the definition of a sham, the court wrote.
Gallegos said that he does not regret filing the case, and said the appellate court ruling informs the public in regard to the unfair competition law and the Noerr-Pennington Doctrine in a unique situation. He said it was worth the cost, but did not have a figure on how much money or how many hours were spent pursuing the case.
Before considering a petition to the California Supreme Court, he said would consult with colleagues about it. But Gallegos said the issue may be something the Legislature should consider taking up.
Palco Vice President Frank Bacik said in a phone interview that the Supreme Court reviews only a small portion of significant or novel cases, and said the appellate court cited long-standing precedents in making its ruling.
”One would not expect them to be interested in reviewing this case,” Bacik said.
John Driscoll The Times-Standard
Article Launched: 01/12/2008 01:21:18 AM PST
Humboldt County District Attorney Paul Gallegos said he disagrees -- but respects -- a state appellate court's ruling allowing his hallmark fraud suit against the Pacific Lumber Co. to be tossed out.
At a press conference Friday, Gallegos said that the California 1st District Court of Appeal upheld privileges that originate in the First Amendment.
”Certainly I understand the public policy issues behind those privileges,” Gallegos said.
But he said that there is no societal value in fraud. While he believes the case looks into a new area of law, he said it is unlikely that he will petition the California Supreme Court in the matter.
The lawsuit, filed in February 2003, claimed Palco submitted faulty studies during the Headwaters Forest negotiations to get the California Department of Forestry to adopt a less restrictive long-term logging plan. Gallegos' second amended complaint was thrown out of Humboldt County Superior Court by visiting Judge Richard Freeborn, a ruling upheld by the appeals court.
The logging plan was part of the agreement to sell the 7,400-acre Headwaters Forest and other groves for $480 million. Gallegos argued that the company secured it by submitting false data on landslides in one watershed and not submitting a correction until the last minute.
Palco's lobbying efforts with the state were the real force behind CDF's decision to drop the stricter logging plan and adopt a less restrictive one, the appeals court judges determined. The California Environmental Quality Act proceedings during the Headwaters discussions were the appropriate venue to consider if any evidence presented was false, they wrote.
Those lobbying efforts are privileged under state unfair competition laws, the ruling reads. The court also determined that Palco is protected by the Noerr-Pennington Doctrine that shields anyone petitioning the government or government agencies against civil liability, unless they are engaged in a “sham.”
But Palco's efforts didn't meet the definition of a sham, the court wrote.
Gallegos said that he does not regret filing the case, and said the appellate court ruling informs the public in regard to the unfair competition law and the Noerr-Pennington Doctrine in a unique situation. He said it was worth the cost, but did not have a figure on how much money or how many hours were spent pursuing the case.
Before considering a petition to the California Supreme Court, he said would consult with colleagues about it. But Gallegos said the issue may be something the Legislature should consider taking up.
Palco Vice President Frank Bacik said in a phone interview that the Supreme Court reviews only a small portion of significant or novel cases, and said the appellate court cited long-standing precedents in making its ruling.
”One would not expect them to be interested in reviewing this case,” Bacik said.
ER - Gallegos responds to appeal court ruling on fraud suit
Gallegos responds to appeal court ruling on fraud suit
By NATHAN RUSHTON, The Eureka Reporter
Published: Jan 12 2008, 2:21 AM
At a news conference Friday, District Attorney Paul Gallegos adamantly defended his decision to pursue a fraud lawsuit against Pacific Lumber Co. that was dismissed twice because the court found it had no legal merit.
“I think it was right to file the case,” Gallegos said.
He acknowledged that a considerable amount of time and effort went into the legal battle that has spanned four years and the county was at risk to pay the legal fees and possibly PALCO’s attorney costs.
A California Appeals Court published a rare 23-page decision and opinion Thursday upholding a Humboldt County Superior Court ruling that the fraud charges brought against PALCO under Unfair Competition Laws weren’t legally sufficient to go to trial and were dismissed on demurrer.
Going beyond simply upholding the demurrer ruling, the appellate court stated that Gallegos failed to prove that his case could be fixed to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”
After review, Gallegos said he disagrees with the court’s ruling, but respects the decision.
Gallegos’ alleged in his original suit, filed in 2003, that PALCO intentionally committed fraud to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.
In a 2005 decision, visiting judge Richard Freeborn sustained a previous demurrer ruling that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected under Civil Code “litigation privilege.”
The court noted that a corrected report was resubmitted more than one month before the permits were granted by state regulators and didn’t likely affect the outcome of an extensive and exhaustive administrative process.
Gallegos hasn’t ruled out an appeal of the ruling to the California Supreme Court, but said he wanted to consult with his colleagues before deciding.
According to its Web site, the Supreme Court must have an appeal served and filed within 10 days after the appeal court’s decision is final.
Gallegos stated he believes it is right for citizens to believe that businesses seeking logging permits should be obligated to provide truthful and accurate statements in environmental impact review processes.
Gallegos said a legislative remedy may be needed to address fraudulent data entering administrative hearings.
While Gallegos said he believes the California Environmental Quality Act process was undermined by the alleged fraudulent information by PALCO, he said it is uncertain if it would have played out differently if they had the correct information earlier.
“We really don’t know,” Gallegos said.
But Gallegos said what is known following the court ruling is that the sediment reports were protected under the litigation privilege laws
Frank Bacik, vice president and general counsel for PALCO, responded Friday to whether fraudulent information ever was submitted to regulators during the process.
“No, absolutely not,” Bacik said.
Bacik said there was never any need for the company to rely on the litigation privilege’s immunity defense.
“We don’t believe there was any misinformation or fraud,” Bacik said.
By NATHAN RUSHTON, The Eureka Reporter
Published: Jan 12 2008, 2:21 AM
At a news conference Friday, District Attorney Paul Gallegos adamantly defended his decision to pursue a fraud lawsuit against Pacific Lumber Co. that was dismissed twice because the court found it had no legal merit.
“I think it was right to file the case,” Gallegos said.
He acknowledged that a considerable amount of time and effort went into the legal battle that has spanned four years and the county was at risk to pay the legal fees and possibly PALCO’s attorney costs.
A California Appeals Court published a rare 23-page decision and opinion Thursday upholding a Humboldt County Superior Court ruling that the fraud charges brought against PALCO under Unfair Competition Laws weren’t legally sufficient to go to trial and were dismissed on demurrer.
Going beyond simply upholding the demurrer ruling, the appellate court stated that Gallegos failed to prove that his case could be fixed to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”
After review, Gallegos said he disagrees with the court’s ruling, but respects the decision.
Gallegos’ alleged in his original suit, filed in 2003, that PALCO intentionally committed fraud to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.
In a 2005 decision, visiting judge Richard Freeborn sustained a previous demurrer ruling that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected under Civil Code “litigation privilege.”
The court noted that a corrected report was resubmitted more than one month before the permits were granted by state regulators and didn’t likely affect the outcome of an extensive and exhaustive administrative process.
Gallegos hasn’t ruled out an appeal of the ruling to the California Supreme Court, but said he wanted to consult with his colleagues before deciding.
According to its Web site, the Supreme Court must have an appeal served and filed within 10 days after the appeal court’s decision is final.
Gallegos stated he believes it is right for citizens to believe that businesses seeking logging permits should be obligated to provide truthful and accurate statements in environmental impact review processes.
Gallegos said a legislative remedy may be needed to address fraudulent data entering administrative hearings.
While Gallegos said he believes the California Environmental Quality Act process was undermined by the alleged fraudulent information by PALCO, he said it is uncertain if it would have played out differently if they had the correct information earlier.
“We really don’t know,” Gallegos said.
But Gallegos said what is known following the court ruling is that the sediment reports were protected under the litigation privilege laws
Frank Bacik, vice president and general counsel for PALCO, responded Friday to whether fraudulent information ever was submitted to regulators during the process.
“No, absolutely not,” Bacik said.
Bacik said there was never any need for the company to rely on the litigation privilege’s immunity defense.
“We don’t believe there was any misinformation or fraud,” Bacik said.
1.11.2008
ER - Appeal court upholds dismissal of fraud suit against PALCO
Appeal court upholds dismissal of fraud suit against PALCO
By NATHAN RUSHTON, The Eureka Reporter
Published: Jan 10 2008, 8:09 PM
A California Appeals Court has upheld a Humboldt County Superior Court ruling that the fraud charges brought against Pacific Lumber Co. by District Attorney Paul Gallegos weren’t legally sufficient to move forward.
Barring an appeal to the California Supreme Court, it is the end of the line for the lawsuit filed by Gallegos under Unfair Competition Laws in 2003.
The suit alleges that PALCO intentionally committed fraud in an effort to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.
But the district attorney’s case and two subsequent amendments were dismissed by the courts on demurrer, which effectively throws out the case as a result of a lack of legal claims.
In 2005, visiting judge Richard Freeborn, acting for the Humboldt County Superior Court, sustained a previous demurrer ruling that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected by the “litigation privilege” under Civil Code section 47(b).
Litigation privilege protects communications made as part of a judicial or quasi-judicial proceeding, according to court documents.
PALCO said its actions were also protected under the Noerr-Pennington Doctrine, which it argued is constitutionally protected freedom of speech that provides immunity from litigation to businesses in their efforts to persuade government.
In this case it was the lengthy California Department of Forestry’s environmental review as part of the California Environmental Quality Act process for the timber company’s long-term harvest plan as part of the Headwaters Agreement.
Gallegos stated in his oral arguments Dec. 19 to the Appeals Court justices in San Francisco that the trial court erred in its previous ruling in applying the law, citing PALCO’s conduct was not protected under the litigation privilege or Noerr-Pennington.
In an audio transcript obtained by The Eureka Reporter, Gallegos told the court that the fraud case is “fundamentally about preserving the integrity” of judicial and CEQA proceedings.
Gallegos said that to grant immunity to an applicant who submits false information “completely erodes the integrity of the system and disempowers the administrative agencies from fulfilling their mandate,” which he said in this case is protecting the state’s resources.
But the appellate court justices disagreed and concluded in a rare 23-page published ruling and opinion that Gallegos failed to prove — on his third attempt — any “reasonable possibility” that his case could be corrected to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”
The court also noted that even though PALCO may have submitted erroneous data, the corrected data was available to decision-makers and stricter harvest permits were adopted.
The opinion states: “Given the undisputed presence of disinterested decision makers at the CDF, as well as other state agencies, the extensive independent review and analysis of Pacific Lumber’s proposed harvesting plan, the public hearing open to all interested persons and agencies, and the review process that was available for correcting any identifiable errors (including misrepresentations) in a timely fashion, we are thus disinclined to conclude the CEQA proceedings were rendered illegitimate by Pacific Lumber’s alleged submission of fraudulent data — which indeed was corrected over a month before issuance of the CDF’s ultimate decision.”
Frank Bacik, vice president and general counsel for PALCO, said in a telephone interview from San Francisco Thursday that the company was pleased with the court’s published ruling.
“The court confirmed the application of longstanding legal doctrines established by the state legislature and the U.S. Supreme Court protecting the right of companies to petition the government,” Bacik said in a statement. “The court determined that the trial court was correct as a matter of law to dismiss the case, even before trial, because the DA simply urged incorrect and untenable interpretations of law.”
Bacik said in upholding the dismissal of the case, the appeal court looked at a vast array of facts and found that CDF and the public had extraordinary access to reports and information related to the long-term timber harvest plan in question.
“I am very pleased to the extent that the facts were analyzed,” Bacik said.
For Gallegos, the lawsuit he first filed against PALCO in February 2003 was a key moment in his political career.
The controversial lawsuit propagated an unsuccessful recall effort to oust him from the District Attorney position he took over in 2002 after defeating 20-year incumbent Terry Farmer.
Whether or not Gallegos intends to appeal Thursday’s ruling to the California Supreme Court and how much the county might have to pay PALCO for its legal costs to defend itself is uncertain.
Gallegos did not return phone calls to The Eureka Reporter by deadline.
By NATHAN RUSHTON, The Eureka Reporter
Published: Jan 10 2008, 8:09 PM
A California Appeals Court has upheld a Humboldt County Superior Court ruling that the fraud charges brought against Pacific Lumber Co. by District Attorney Paul Gallegos weren’t legally sufficient to move forward.
Barring an appeal to the California Supreme Court, it is the end of the line for the lawsuit filed by Gallegos under Unfair Competition Laws in 2003.
The suit alleges that PALCO intentionally committed fraud in an effort to increase timber harvesting by manipulating watershed sediment reports during the environmental review that led to the signing of the controversial Headwaters Deal in 1999.
But the district attorney’s case and two subsequent amendments were dismissed by the courts on demurrer, which effectively throws out the case as a result of a lack of legal claims.
In 2005, visiting judge Richard Freeborn, acting for the Humboldt County Superior Court, sustained a previous demurrer ruling that PALCO’s submission of an allegedly erroneous report and the subsequent resubmission of corrected data was protected by the “litigation privilege” under Civil Code section 47(b).
Litigation privilege protects communications made as part of a judicial or quasi-judicial proceeding, according to court documents.
PALCO said its actions were also protected under the Noerr-Pennington Doctrine, which it argued is constitutionally protected freedom of speech that provides immunity from litigation to businesses in their efforts to persuade government.
In this case it was the lengthy California Department of Forestry’s environmental review as part of the California Environmental Quality Act process for the timber company’s long-term harvest plan as part of the Headwaters Agreement.
Gallegos stated in his oral arguments Dec. 19 to the Appeals Court justices in San Francisco that the trial court erred in its previous ruling in applying the law, citing PALCO’s conduct was not protected under the litigation privilege or Noerr-Pennington.
In an audio transcript obtained by The Eureka Reporter, Gallegos told the court that the fraud case is “fundamentally about preserving the integrity” of judicial and CEQA proceedings.
Gallegos said that to grant immunity to an applicant who submits false information “completely erodes the integrity of the system and disempowers the administrative agencies from fulfilling their mandate,” which he said in this case is protecting the state’s resources.
But the appellate court justices disagreed and concluded in a rare 23-page published ruling and opinion that Gallegos failed to prove — on his third attempt — any “reasonable possibility” that his case could be corrected to move forward and even if it did, the evidence presented “would not justify their prevailing at trial.”
The court also noted that even though PALCO may have submitted erroneous data, the corrected data was available to decision-makers and stricter harvest permits were adopted.
The opinion states: “Given the undisputed presence of disinterested decision makers at the CDF, as well as other state agencies, the extensive independent review and analysis of Pacific Lumber’s proposed harvesting plan, the public hearing open to all interested persons and agencies, and the review process that was available for correcting any identifiable errors (including misrepresentations) in a timely fashion, we are thus disinclined to conclude the CEQA proceedings were rendered illegitimate by Pacific Lumber’s alleged submission of fraudulent data — which indeed was corrected over a month before issuance of the CDF’s ultimate decision.”
Frank Bacik, vice president and general counsel for PALCO, said in a telephone interview from San Francisco Thursday that the company was pleased with the court’s published ruling.
“The court confirmed the application of longstanding legal doctrines established by the state legislature and the U.S. Supreme Court protecting the right of companies to petition the government,” Bacik said in a statement. “The court determined that the trial court was correct as a matter of law to dismiss the case, even before trial, because the DA simply urged incorrect and untenable interpretations of law.”
Bacik said in upholding the dismissal of the case, the appeal court looked at a vast array of facts and found that CDF and the public had extraordinary access to reports and information related to the long-term timber harvest plan in question.
“I am very pleased to the extent that the facts were analyzed,” Bacik said.
For Gallegos, the lawsuit he first filed against PALCO in February 2003 was a key moment in his political career.
The controversial lawsuit propagated an unsuccessful recall effort to oust him from the District Attorney position he took over in 2002 after defeating 20-year incumbent Terry Farmer.
Whether or not Gallegos intends to appeal Thursday’s ruling to the California Supreme Court and how much the county might have to pay PALCO for its legal costs to defend itself is uncertain.
Gallegos did not return phone calls to The Eureka Reporter by deadline.
1.10.2008
TS - Gallegos' Palco case dashed by appeals court
Down in flames! The Times Standard's first attempt 'Breaking News' has some facts wrong - the case was filed February 24, 2003, Gallegos took office January 2003.
***
Gallegos' Palco case dashed by appeals court
The Times-Standard
Article Launched: 01/10/2008 02:36:47 PM PST
A state appeals court has upheld a Humboldt County Superior Court ruling that threw out District Attorney Paul Gallegos' fraud lawsuit against the Pacific Lumber Co.
In a ruling Thursday, the California First District Court of Appeal agreed with visiting Judge Richard Freeborn's decision to toss out the suit -- which was first filed in 2002. It alleged Palco knowingly submitted faulty studies during the Headwaters Forest negitoations to sway regulators to allow it to cut more timber.
Freeborn ruled the district attorney didn't prove that the company duped the government to gain advantage over a competitor, Freeborn wrote in his June 2005 decision.
The appeals court said that Freeborn had no discretion to weigh the evidence in the case when it ruled. But the appeals court went further, saying that even if the evidence submitted by the DA's office was considered, it wouldn't show that the DA would prevail at trial.
There will be a full story in the morning paper.
There is more coverage and discussion at watchpaul.blogspot.com - there are links to all of the case filings, amendments and briefs as well.
***
Gallegos' Palco case dashed by appeals court
The Times-Standard
Article Launched: 01/10/2008 02:36:47 PM PST
A state appeals court has upheld a Humboldt County Superior Court ruling that threw out District Attorney Paul Gallegos' fraud lawsuit against the Pacific Lumber Co.
In a ruling Thursday, the California First District Court of Appeal agreed with visiting Judge Richard Freeborn's decision to toss out the suit -- which was first filed in 2002. It alleged Palco knowingly submitted faulty studies during the Headwaters Forest negitoations to sway regulators to allow it to cut more timber.
Freeborn ruled the district attorney didn't prove that the company duped the government to gain advantage over a competitor, Freeborn wrote in his June 2005 decision.
The appeals court said that Freeborn had no discretion to weigh the evidence in the case when it ruled. But the appeals court went further, saying that even if the evidence submitted by the DA's office was considered, it wouldn't show that the DA would prevail at trial.
There will be a full story in the morning paper.
There is more coverage and discussion at watchpaul.blogspot.com - there are links to all of the case filings, amendments and briefs as well.
10.30.2007
Description of Amicus Curiae
Posted to supplement the discussion at watchpaul on this topic:
An amicus curia brief literally means "friend of the court." It is written by an interested party that is NOT a party to the lawsuit to give the court more information on the law. It is not a sure thing. The group has to file an application to the court to file the brief which has to be accepted BEFORE the filing is accepted.
This latest move means someone has gotten someone in the City Attorney's office to help Paul. Nothing in the brief has anything to do with San Francisco....
Here's the description of Amicus Curiae:
"''Amicus curiae'' is a Latin expression meaning ''friend of the court'' [Black's Law Dictionary 75 (5th ed. 1979)]. The plural of amicus curiae is ''amici curiae.'' Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions [ Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169, 1179-1183, 39 Cal. Rptr. 3d 788, 129 P. 3d 1 ; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ].
Although an amicus curiae generally participates in an appellate court proceeding at his or her own request [ see § 22.16], the trial court may request him or her to seek permission to participate from the appellate court [see Marshall v. Marshall (1931) 212 Cal. 736, 737-738, 300 P. 816 (trial court requested that certain attorneys seek permission from appellate court to file amicus curiae briefs when defendant failed to appear on appeal or file a brief; trial court's action justified by sufficiently public nature of matter involved)]. A trial court may not appoint an amicus curiae to represent it on appeal, however, since the court itself is not a party to the appeal [ In re Pina (1896) 112 Cal. 14, 16, 44 P. 332 ].
The appellate court may also invite amicus curiae briefs [see Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d 880, 153 Cal. Rptr. 842, 592 P.2d 329 (Supreme Court requested amicus briefs relating to construction of disputed insurance statute), overruled on other grounds in Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 250 Cal. Rptr. 116, 758 P.2d 58 ].
[1] Raising New Matters Generally Not Permitted
As a general rule, an appellate court will consider only those questions properly raised by the parties; an amicus curiae in an appellate court must accept the issues as framed and propositions as set forth by the appealing parties. Any additional questions presented in a brief filed by an amicus curiae will generally not be considered by the court [ White v. Davis (2003)
30 Cal. 4th 528, 553, n. 10, 133 Cal. Rptr. 2d 648, 68 P.3d 74 (court refused to consider amicus curiae argument regarding payment to lawyers appointed to represent indigent defendants when argument was not previously raised); Berg v. Traylor (2007) 148 Cal. App. 4th 809, 823, 56 Cal. Rptr. 3d 140 ; Big Creek Lumber Co. v. County of Santa Cruz (2004) 115 Cal. App. 4th 952, 966, 10 Cal. Rptr. 3d 356 (court refuses to hear constitutional issue raised solely by amicus curiae); Rieger v. Arnold (2002) 104 Cal. App. 4th 451, 461, 128 Cal. Rptr. 2d 295 (court rejected amicus curiae argument urging court not to consider plaintiff's actions in sexual harassment cause of action because parties did not raise argument); see also Knetsch v.
United States (1960) 364 U.S. 361, 370, 81 S. Ct. 132, 5 L. Ed. 2d 128 (additional questions presented in amicus curiae brief filed in U.S. Supreme Court not considered); City of Los Angeles v. Standard Oil Co. (1968) 262 Cal. App. 2d 118 , 127, 68 Cal. Rptr. 512 (amicus curiae who filed brief in appellate court declaratory relief action to determine constitutionality of
a statute was not allowed to seek relief based on hypothetical construction of statute not asserted by parties)].
[2] New Arguments or Issues Sometimes Allowed
Generally, courts will consider an issue raised only by amicus curiae only in the following situations [ Costa v. Workers' Comp. Appeals Bd. (1998) 65 Cal. App. 4th 1177, 1187-1188, 77 Cal. Rptr. 2d 289 ]: The issue supports affirmance.
The issue concerns the jurisdiction of the court.
For example, the Supreme Court considered an issue first raised by an amicus curiae on appeal because a jurisdictional question was involved, and the appeal was also from judgment of dismissal after the trial court sustained a general demurrer without leave to amend, in which situation an appellate court is required to affirm the judgment if it is correct on any theory,
including one first raised by amicus [see E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal. 3d 497, 510-511, 146 Cal. Rptr. 614, 579 P.2d 505 ].
An amicus curiae may also be permitted to raise a new issue on appeal when
the issue arises from a United States Supreme Court opinion decided during
pendency of appellate court action, the parties do not inform the appellate
court of that decision, and the appellate decision does not address the
particular issue [see Fisher v. City of Berkeley (1984) 1985-1 Trade Cas.
(CCH) P66473, 37 Cal. 3d 644, 209 Cal. Rptr. 682, 693 P.2d 261 , aff'd, 475
U.S. 260, 106 S. Ct. 1045, 89 L. Ed. 2d 206, 1986-1 Trade Cas. (CCH) P66965
]; the issue is a purely legal issue of statutory interpretation and is not
dependent upon the development of a factual record in the trial court [see
California Highway Patrol v. Superior Court (2006) 135 Cal. App. 4th 488,
498, 38 Cal. Rptr. 3d 16] ; the issue presented is of statewide importance
and capable of being presented repeatedly [see Lavie v. Procter & Gamble Co.
(2003) 105 Cal. App. 4th 496, 503, 129 Cal. Rptr. 2d 486 (court considered
amicus argument because standard for evaluating whether advertisement is
deceptive under Unfair Competition Law is question of law with important
public policy implications); People v. Niebauer (1989) 214 Cal. App. 3d
1278, 1291, 263 Cal. Rptr. 287 (court considered argument of amicus curiae
not raised by either party, relating to constitutionality of statute
prohibiting dark-tinted windows in motor vehicles)]; the lower court had a
duty to take judicial notice of the material forming the basis of the amicus
curiae's argument, and the material can therefore be considered part of the
record on appeal [see Pratt v. Coast Trucking, Inc. (1964) 228 Cal. App. 2d
139, 143-149, 39 Cal. Rptr. 332 (Public Utilities Commission as amicus
curiae permitted to raise argument not raised by either party) ]; or the
interests of justice dictate that the amicus be allowed to present the issue
[see People v. Coleman (1942) 53 Cal. App. 2d 18, 32, 127 P.2d 309 (allowing
amicus curiae in criminal action to raise objections to instructions not
objected to by defendant)].
[3] Improper Matter Ignored or Stricken
The rules and practices of reviewing courts accord wide latitude to
interested and responsible parties who seek to file amicus curiae briefs, in
order to further the purpose of these briefs in assisting the court [ Bily
v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 405 n.14, 11 Cal. Rptr. 2d 51,
834 P.2d 745 ; see Cal. Rules of Ct., Rule 8.520(f); see also discussion in
§ 22.11[1] (purpose of participation by amicus curiae)]. The reviewing court
may choose to ignore, however, improper material such as unreliable and
irrelevant information [ Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370,
405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ].
Improper material may be stricken from an amicus brief in extreme cases of
obvious abuse of the amicus curiae privilege. Otherwise courts are not
inclined to control the contents of amicus curiae briefs by use of orders to
strike [see Cornette v. Department of Transp. (2001) 26 Cal. 4th 63, 77, 109
Cal. Rptr. 2d 1, 26 P.3d 332 ; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th
370, 405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ; Matuz v. Gerardin Corp.
(1989) 207 Cal. App. 3d 203, 206-207 ].
For further discussion of improper content of appellate briefs generally,
and a form of motion to strike a defective brief, see Ch. 50, Appeal: Briefs
In an appeal to the appellate division of the Superior Court, an amicus
curiae may file a brief after permission is obtained from the presiding
judge, subject to any conditions that he or she may prescribe. If the brief
supports one of the parties' position, that fact must be noted in its
heading [Cal. Rules of Ct., Rule 8.706(b); see also Cal. Rules of Ct., Rule
8.706(c), (d) (contents and format of briefs filed in appellate division of
superior court); for a form of such notation, see § 22.42 ].
The Attorney General may file an amicus curiae brief without obtaining the
presiding judge's permission, unless the Attorney General is presenting the
brief on behalf of another state officer or agency. The presiding judge may
prescribe reasonable conditions for filing and answering such a brief [Cal.
Rules of Ct., Rule 8.706(b) ].
For a form of request for leave to file a brief as amicus curiae in the
appellate division of the superior court, see § 22.41[1] . For further
discussion relating to the requirements governing the content and format,
and filing of a brief, including an amicus curiae brief, in an appeal before
the appellate division of the superior court, see Ch. 345A, Limited Civil
Cases, § 345A.56 .
An amicus curiae brief must be served on all parties before it is filed
[Cal. Rules of Ct., Rule 8.706(e) ]. To demonstrate compliance with this
requirement, it is recommended that proof of service accompany the filing
copies of the brief. For forms of proof of service, see Ch. 518, Service of
Summons and Papers, § 518.90 et seq.
[3] California Court of Appeal
A brief of amicus curiae in a court of appeal on the merits of an action or
proceeding may be filed after permission is first obtained from the
presiding justice, subject to any conditions that may be prescribed. To
obtain permission the applicant must file with the clerk of the reviewing
court a signed request that states the nature of the applicant's interest
and explains how the proposed amicus curiae brief will assist the court in
deciding the matter [Cal. Rules of Ct., Rule 8.200(c)(2) ]. The proposed
brief must be served and must accompany the application, and may be combined
with the application [Cal. Rules of Ct., Rule 8.200(c)(3) ]. The covers of
the application and proposed brief must identify the party the applicant
supports, if any [Cal. Rules of Ct., Rule 8.200(c)(4) ]. For a form of
request for leave to file a brief as amicus curiae in the court of appeal,
see § 22.41[1] .
The Attorney General may file an amicus curiae brief without obtaining the
presiding justice's permission, unless the Attorney General is presenting
the brief on behalf of another state officer or agency. The Attorney General
must file the brief within 14 days after the last respondent's brief, or the
return, is filed. The brief must contain the information otherwise required
in a request for permission to file an amicus brief in the court of appeal.
Any party may file an answer to an amicus curiae brief of the Attorney
General within 14 days after it is filed [Cal. Rules of Ct., Rule
8.200(c)(6) ].
If the court grants the application of an amicus curiae to file a brief, any
party may file an answer within the time the court specifies [Cal. Rules of
Ct., Rule 8.200(c)(5) ]. Before any answer to an amicus curiae brief is
filed, it must be served on all parties and on the amicus curiae [Cal. Rules
of Ct., Rule 8.200(c)(5) ]. To demonstrate compliance with this requirement,
it is recommended that proof of service accompany the filing copies of such
briefs. For forms of proof of service, see Ch. 518, Service of Summons and
Papers, § 518.90 et seq. The filing copies of the brief must also be
accompanied by proof of deposit of one copy with the clerk of the superior
court for delivery to the judge who presided at trial [see Cal. Rules of
Ct., Rule 8.212(c) ].
The covers of the amicus curiae application and brief must identify the
party, if any, that the brief supports [Cal. Rules of Ct., Rule 8.520(f)(5);
for a form of such notation, see § 22.42 ]. Whenever practicable, the cover
of an amicus curiae brief should be gray [Cal. Rules of Ct., Rule 8.40(b) ].
For further discussion and forms relating to the format, content, and other
procedural requirements governing briefs generally, including amicus curiae
briefs, filed in a civil appeal before the court of appeal, see Ch. 50,
Appeal: Briefs .
A brief of amicus curiae on the merits of an action or proceeding may be
filed after permission is obtained from the Chief Justice, subject to any
conditions that may be prescribed. To obtain permission the applicant must
file with the clerk of the Supreme Court a signed request, accompanied by
the proposed brief, stating the nature of the applicant's interest and
explaining how the proposed brief will assist the court in deciding the
matter [Cal. Rules of Ct., Rule 8.520(f)(3) ].
The request and proposed brief must be received by the court no later than
30 days after all briefs, other than supplemental briefs, which the parties
are entitled to file pursuant to Cal. Rules of Ct., Rule 8.520(f), either
have been filed or can no longer be filed within the time limits prescribed
by that rule. The Chief Justice may grant leave for later filing if the
applicant presents specific and compelling reasons for the delay [Cal. Rules
of Ct., Rule 8.520(f)(2) ]. For a form of request for leave to file a brief
as amicus curiae in an appeal before the Supreme Court, see § 22.41[2] .
The Attorney General may file an amicus curiae brief without obtaining the
Chief Justice's permission, unless the Attorney General is presenting the
brief on behalf of another state officer or agency. The Attorney General
must file the brief within the time required for receipt of a request for
permission to file an amicus brief. The brief must contain the information
otherwise required in a request for permission to file an amicus brief in
the Supreme Court [Cal. Rules of Ct., Rule 8.520(f)(7) ].
Before any amicus curiae brief is filed, it must be served on all parties
[Cal. Rules of Ct., Rule 8.520(f)(1) ]. To demonstrate compliance with this
requirement, it is recommended that proof of service accompany the filing
copies of such briefs [cf. discussion in [a], above (proof of service
expressly required for amicus curiae letter supporting or opposing petition
for review); for forms of proof of service, see Ch. 518, Service of Summons
and Papers § 518.90 et seq.]. The filing copies of the brief must also be
accompanied by proof of deposit of one copy with the clerk of the superior
court for delivery to the judge who presided at trial [see Cal. Rules of
Ct., Rule 8.212(c) ].
Any party may file an answer to an amicus brief within 20 days after it is
filed. Before any answer is filed, it must be served on all parties and on
the amicus curiae [Cal. Rules of Ct., Rule 8.520(f)(6) ].
Amicus curiae briefs on the merits in the Supreme Court must conform as
nearly as possible to the requirements of Cal. Rules of Ct., Rule 8.520(b),
relating to form and content. The cover of an amicus curiae brief must
identify the party, if any, that the brief supports [Cal. Rules of Ct., Rule
8.520(f)(5); for a form of such notation, see § 22.42 ]. In addition,
whenever practicable, the cover of an amicus curiae brief should be gray
[Cal. Rules of Ct., Rule 8.40(b) ].
For further discussion and forms relating to the format, content, and other
procedural requirements governing briefs generally, including amicus curiae
briefs, filed in a civil review proceeding before the Supreme Court, see Ch.
54, Appeal: California Supreme Court Review .
An amicus curia brief literally means "friend of the court." It is written by an interested party that is NOT a party to the lawsuit to give the court more information on the law. It is not a sure thing. The group has to file an application to the court to file the brief which has to be accepted BEFORE the filing is accepted.
This latest move means someone has gotten someone in the City Attorney's office to help Paul. Nothing in the brief has anything to do with San Francisco....
Here's the description of Amicus Curiae:
"''Amicus curiae'' is a Latin expression meaning ''friend of the court'' [Black's Law Dictionary 75 (5th ed. 1979)]. The plural of amicus curiae is ''amici curiae.'' Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions [ Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169, 1179-1183, 39 Cal. Rptr. 3d 788, 129 P. 3d 1 ; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ].
Although an amicus curiae generally participates in an appellate court proceeding at his or her own request [ see § 22.16], the trial court may request him or her to seek permission to participate from the appellate court [see Marshall v. Marshall (1931) 212 Cal. 736, 737-738, 300 P. 816 (trial court requested that certain attorneys seek permission from appellate court to file amicus curiae briefs when defendant failed to appear on appeal or file a brief; trial court's action justified by sufficiently public nature of matter involved)]. A trial court may not appoint an amicus curiae to represent it on appeal, however, since the court itself is not a party to the appeal [ In re Pina (1896) 112 Cal. 14, 16, 44 P. 332 ].
The appellate court may also invite amicus curiae briefs [see Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d 880, 153 Cal. Rptr. 842, 592 P.2d 329 (Supreme Court requested amicus briefs relating to construction of disputed insurance statute), overruled on other grounds in Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 250 Cal. Rptr. 116, 758 P.2d 58 ].
[1] Raising New Matters Generally Not Permitted
As a general rule, an appellate court will consider only those questions properly raised by the parties; an amicus curiae in an appellate court must accept the issues as framed and propositions as set forth by the appealing parties. Any additional questions presented in a brief filed by an amicus curiae will generally not be considered by the court [ White v. Davis (2003)
30 Cal. 4th 528, 553, n. 10, 133 Cal. Rptr. 2d 648, 68 P.3d 74 (court refused to consider amicus curiae argument regarding payment to lawyers appointed to represent indigent defendants when argument was not previously raised); Berg v. Traylor (2007) 148 Cal. App. 4th 809, 823, 56 Cal. Rptr. 3d 140 ; Big Creek Lumber Co. v. County of Santa Cruz (2004) 115 Cal. App. 4th 952, 966, 10 Cal. Rptr. 3d 356 (court refuses to hear constitutional issue raised solely by amicus curiae); Rieger v. Arnold (2002) 104 Cal. App. 4th 451, 461, 128 Cal. Rptr. 2d 295 (court rejected amicus curiae argument urging court not to consider plaintiff's actions in sexual harassment cause of action because parties did not raise argument); see also Knetsch v.
United States (1960) 364 U.S. 361, 370, 81 S. Ct. 132, 5 L. Ed. 2d 128 (additional questions presented in amicus curiae brief filed in U.S. Supreme Court not considered); City of Los Angeles v. Standard Oil Co. (1968) 262 Cal. App. 2d 118 , 127, 68 Cal. Rptr. 512 (amicus curiae who filed brief in appellate court declaratory relief action to determine constitutionality of
a statute was not allowed to seek relief based on hypothetical construction of statute not asserted by parties)].
[2] New Arguments or Issues Sometimes Allowed
Generally, courts will consider an issue raised only by amicus curiae only in the following situations [ Costa v. Workers' Comp. Appeals Bd. (1998) 65 Cal. App. 4th 1177, 1187-1188, 77 Cal. Rptr. 2d 289 ]: The issue supports affirmance.
The issue concerns the jurisdiction of the court.
For example, the Supreme Court considered an issue first raised by an amicus curiae on appeal because a jurisdictional question was involved, and the appeal was also from judgment of dismissal after the trial court sustained a general demurrer without leave to amend, in which situation an appellate court is required to affirm the judgment if it is correct on any theory,
including one first raised by amicus [see E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal. 3d 497, 510-511, 146 Cal. Rptr. 614, 579 P.2d 505 ].
An amicus curiae may also be permitted to raise a new issue on appeal when
the issue arises from a United States Supreme Court opinion decided during
pendency of appellate court action, the parties do not inform the appellate
court of that decision, and the appellate decision does not address the
particular issue [see Fisher v. City of Berkeley (1984) 1985-1 Trade Cas.
(CCH) P66473, 37 Cal. 3d 644, 209 Cal. Rptr. 682, 693 P.2d 261 , aff'd, 475
U.S. 260, 106 S. Ct. 1045, 89 L. Ed. 2d 206, 1986-1 Trade Cas. (CCH) P66965
]; the issue is a purely legal issue of statutory interpretation and is not
dependent upon the development of a factual record in the trial court [see
California Highway Patrol v. Superior Court (2006) 135 Cal. App. 4th 488,
498, 38 Cal. Rptr. 3d 16] ; the issue presented is of statewide importance
and capable of being presented repeatedly [see Lavie v. Procter & Gamble Co.
(2003) 105 Cal. App. 4th 496, 503, 129 Cal. Rptr. 2d 486 (court considered
amicus argument because standard for evaluating whether advertisement is
deceptive under Unfair Competition Law is question of law with important
public policy implications); People v. Niebauer (1989) 214 Cal. App. 3d
1278, 1291, 263 Cal. Rptr. 287 (court considered argument of amicus curiae
not raised by either party, relating to constitutionality of statute
prohibiting dark-tinted windows in motor vehicles)]; the lower court had a
duty to take judicial notice of the material forming the basis of the amicus
curiae's argument, and the material can therefore be considered part of the
record on appeal [see Pratt v. Coast Trucking, Inc. (1964) 228 Cal. App. 2d
139, 143-149, 39 Cal. Rptr. 332 (Public Utilities Commission as amicus
curiae permitted to raise argument not raised by either party) ]; or the
interests of justice dictate that the amicus be allowed to present the issue
[see People v. Coleman (1942) 53 Cal. App. 2d 18, 32, 127 P.2d 309 (allowing
amicus curiae in criminal action to raise objections to instructions not
objected to by defendant)].
[3] Improper Matter Ignored or Stricken
The rules and practices of reviewing courts accord wide latitude to
interested and responsible parties who seek to file amicus curiae briefs, in
order to further the purpose of these briefs in assisting the court [ Bily
v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 405 n.14, 11 Cal. Rptr. 2d 51,
834 P.2d 745 ; see Cal. Rules of Ct., Rule 8.520(f); see also discussion in
§ 22.11[1] (purpose of participation by amicus curiae)]. The reviewing court
may choose to ignore, however, improper material such as unreliable and
irrelevant information [ Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370,
405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ].
Improper material may be stricken from an amicus brief in extreme cases of
obvious abuse of the amicus curiae privilege. Otherwise courts are not
inclined to control the contents of amicus curiae briefs by use of orders to
strike [see Cornette v. Department of Transp. (2001) 26 Cal. 4th 63, 77, 109
Cal. Rptr. 2d 1, 26 P.3d 332 ; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th
370, 405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ; Matuz v. Gerardin Corp.
(1989) 207 Cal. App. 3d 203, 206-207 ].
For further discussion of improper content of appellate briefs generally,
and a form of motion to strike a defective brief, see Ch. 50, Appeal: Briefs
In an appeal to the appellate division of the Superior Court, an amicus
curiae may file a brief after permission is obtained from the presiding
judge, subject to any conditions that he or she may prescribe. If the brief
supports one of the parties' position, that fact must be noted in its
heading [Cal. Rules of Ct., Rule 8.706(b); see also Cal. Rules of Ct., Rule
8.706(c), (d) (contents and format of briefs filed in appellate division of
superior court); for a form of such notation, see § 22.42 ].
The Attorney General may file an amicus curiae brief without obtaining the
presiding judge's permission, unless the Attorney General is presenting the
brief on behalf of another state officer or agency. The presiding judge may
prescribe reasonable conditions for filing and answering such a brief [Cal.
Rules of Ct., Rule 8.706(b) ].
For a form of request for leave to file a brief as amicus curiae in the
appellate division of the superior court, see § 22.41[1] . For further
discussion relating to the requirements governing the content and format,
and filing of a brief, including an amicus curiae brief, in an appeal before
the appellate division of the superior court, see Ch. 345A, Limited Civil
Cases, § 345A.56 .
An amicus curiae brief must be served on all parties before it is filed
[Cal. Rules of Ct., Rule 8.706(e) ]. To demonstrate compliance with this
requirement, it is recommended that proof of service accompany the filing
copies of the brief. For forms of proof of service, see Ch. 518, Service of
Summons and Papers, § 518.90 et seq.
[3] California Court of Appeal
A brief of amicus curiae in a court of appeal on the merits of an action or
proceeding may be filed after permission is first obtained from the
presiding justice, subject to any conditions that may be prescribed. To
obtain permission the applicant must file with the clerk of the reviewing
court a signed request that states the nature of the applicant's interest
and explains how the proposed amicus curiae brief will assist the court in
deciding the matter [Cal. Rules of Ct., Rule 8.200(c)(2) ]. The proposed
brief must be served and must accompany the application, and may be combined
with the application [Cal. Rules of Ct., Rule 8.200(c)(3) ]. The covers of
the application and proposed brief must identify the party the applicant
supports, if any [Cal. Rules of Ct., Rule 8.200(c)(4) ]. For a form of
request for leave to file a brief as amicus curiae in the court of appeal,
see § 22.41[1] .
The Attorney General may file an amicus curiae brief without obtaining the
presiding justice's permission, unless the Attorney General is presenting
the brief on behalf of another state officer or agency. The Attorney General
must file the brief within 14 days after the last respondent's brief, or the
return, is filed. The brief must contain the information otherwise required
in a request for permission to file an amicus brief in the court of appeal.
Any party may file an answer to an amicus curiae brief of the Attorney
General within 14 days after it is filed [Cal. Rules of Ct., Rule
8.200(c)(6) ].
If the court grants the application of an amicus curiae to file a brief, any
party may file an answer within the time the court specifies [Cal. Rules of
Ct., Rule 8.200(c)(5) ]. Before any answer to an amicus curiae brief is
filed, it must be served on all parties and on the amicus curiae [Cal. Rules
of Ct., Rule 8.200(c)(5) ]. To demonstrate compliance with this requirement,
it is recommended that proof of service accompany the filing copies of such
briefs. For forms of proof of service, see Ch. 518, Service of Summons and
Papers, § 518.90 et seq. The filing copies of the brief must also be
accompanied by proof of deposit of one copy with the clerk of the superior
court for delivery to the judge who presided at trial [see Cal. Rules of
Ct., Rule 8.212(c) ].
The covers of the amicus curiae application and brief must identify the
party, if any, that the brief supports [Cal. Rules of Ct., Rule 8.520(f)(5);
for a form of such notation, see § 22.42 ]. Whenever practicable, the cover
of an amicus curiae brief should be gray [Cal. Rules of Ct., Rule 8.40(b) ].
For further discussion and forms relating to the format, content, and other
procedural requirements governing briefs generally, including amicus curiae
briefs, filed in a civil appeal before the court of appeal, see Ch. 50,
Appeal: Briefs .
A brief of amicus curiae on the merits of an action or proceeding may be
filed after permission is obtained from the Chief Justice, subject to any
conditions that may be prescribed. To obtain permission the applicant must
file with the clerk of the Supreme Court a signed request, accompanied by
the proposed brief, stating the nature of the applicant's interest and
explaining how the proposed brief will assist the court in deciding the
matter [Cal. Rules of Ct., Rule 8.520(f)(3) ].
The request and proposed brief must be received by the court no later than
30 days after all briefs, other than supplemental briefs, which the parties
are entitled to file pursuant to Cal. Rules of Ct., Rule 8.520(f), either
have been filed or can no longer be filed within the time limits prescribed
by that rule. The Chief Justice may grant leave for later filing if the
applicant presents specific and compelling reasons for the delay [Cal. Rules
of Ct., Rule 8.520(f)(2) ]. For a form of request for leave to file a brief
as amicus curiae in an appeal before the Supreme Court, see § 22.41[2] .
The Attorney General may file an amicus curiae brief without obtaining the
Chief Justice's permission, unless the Attorney General is presenting the
brief on behalf of another state officer or agency. The Attorney General
must file the brief within the time required for receipt of a request for
permission to file an amicus brief. The brief must contain the information
otherwise required in a request for permission to file an amicus brief in
the Supreme Court [Cal. Rules of Ct., Rule 8.520(f)(7) ].
Before any amicus curiae brief is filed, it must be served on all parties
[Cal. Rules of Ct., Rule 8.520(f)(1) ]. To demonstrate compliance with this
requirement, it is recommended that proof of service accompany the filing
copies of such briefs [cf. discussion in [a], above (proof of service
expressly required for amicus curiae letter supporting or opposing petition
for review); for forms of proof of service, see Ch. 518, Service of Summons
and Papers § 518.90 et seq.]. The filing copies of the brief must also be
accompanied by proof of deposit of one copy with the clerk of the superior
court for delivery to the judge who presided at trial [see Cal. Rules of
Ct., Rule 8.212(c) ].
Any party may file an answer to an amicus brief within 20 days after it is
filed. Before any answer is filed, it must be served on all parties and on
the amicus curiae [Cal. Rules of Ct., Rule 8.520(f)(6) ].
Amicus curiae briefs on the merits in the Supreme Court must conform as
nearly as possible to the requirements of Cal. Rules of Ct., Rule 8.520(b),
relating to form and content. The cover of an amicus curiae brief must
identify the party, if any, that the brief supports [Cal. Rules of Ct., Rule
8.520(f)(5); for a form of such notation, see § 22.42 ]. In addition,
whenever practicable, the cover of an amicus curiae brief should be gray
[Cal. Rules of Ct., Rule 8.40(b) ].
For further discussion and forms relating to the format, content, and other
procedural requirements governing briefs generally, including amicus curiae
briefs, filed in a civil review proceeding before the Supreme Court, see Ch.
54, Appeal: California Supreme Court Review .
9.29.2007
GALLEGOS' APPEAL DOCS in order
http://www.scribd.com/doc/337250/palco-suitORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND - a 24 page pdf file
Gallegos vs Pacific Lumber Company, Scotia pacific Holding Company, Salmon Creek Corporation and Does 1 through 10 Case No. DR030070
June 14, 2005
APPELLANT'S OPENING BRIEF - a 35 page pdf file
Gallegos vs Pacific Lumber Company, et al Case No. A112028 (Humboldt Superior Court No. DR030070
November 8, 2006
Also available here: humboldt.ca.us/distatty/pdf/palco
RESPONDENT'S REPLY BRIEF - a 57 page pdf file
August 31, 2007
APPELLANT'S REPLY BRIEF - a 36 page pdf file
September 20, 2007 (or September 24)
Gallegos vs Pacific Lumber Company, Scotia pacific Holding Company, Salmon Creek Corporation and Does 1 through 10 Case No. DR030070
June 14, 2005
APPELLANT'S OPENING BRIEF - a 35 page pdf file
Gallegos vs Pacific Lumber Company, et al Case No. A112028 (Humboldt Superior Court No. DR030070
November 8, 2006
Also available here: humboldt.ca.us/distatty/pdf/palco
RESPONDENT'S REPLY BRIEF - a 57 page pdf file
August 31, 2007
APPELLANT'S REPLY BRIEF - a 36 page pdf file
September 20, 2007 (or September 24)
9.28.2007
Gallegos takes on PL
District Attorney Paul Gallegos has come out with both guns blazing in a case filed against the Pacific Lumber Co. earlier this week.
In essence, the case alleges that the company and several of its subsidiaries hid scientific data that could have led to a curtailment of logging on its timberlands.
The DA's office is contending that the company lied in its representation of the severity of landslides in Jordan Creek, located upstream of Humboldt Redwoods State Park. The office also says the company suppressed the distribution of several key environmental documents.
Gallegos is seeking $250 million in restitution for the alleged violations.
Local environmentalists are ecstatic.
"I'm flying. This is the best thing that has ever happened," said Ken Miller, a member of the Humboldt Watershed Council, and a longtime opponent of PL, in a phone interview Tuesday. "My god, finally we have a champion who has some power."
When Gallegos came into office he sent out a letter to many of the local environmental and property rights groups, saying that he believed it was his duty, under California's constitution, to enforce certain environmental laws and asked for any input the groups thought would be helpful.
The DA's office declined to comment on the case, citing ethical rules that prevent them from biasing anyone against their opponents. Pacific Lumber could not be reached for comment.
Gallegos' action comes less than a week after he vowed to the Journal that his office would not sit idly by if environmental laws were being trampled (see "Fresh Air," Feb. 20).
In essence, the case alleges that the company and several of its subsidiaries hid scientific data that could have led to a curtailment of logging on its timberlands.
The DA's office is contending that the company lied in its representation of the severity of landslides in Jordan Creek, located upstream of Humboldt Redwoods State Park. The office also says the company suppressed the distribution of several key environmental documents.
Gallegos is seeking $250 million in restitution for the alleged violations.
Local environmentalists are ecstatic.
"I'm flying. This is the best thing that has ever happened," said Ken Miller, a member of the Humboldt Watershed Council, and a longtime opponent of PL, in a phone interview Tuesday. "My god, finally we have a champion who has some power."
When Gallegos came into office he sent out a letter to many of the local environmental and property rights groups, saying that he believed it was his duty, under California's constitution, to enforce certain environmental laws and asked for any input the groups thought would be helpful.
The DA's office declined to comment on the case, citing ethical rules that prevent them from biasing anyone against their opponents. Pacific Lumber could not be reached for comment.
Gallegos' action comes less than a week after he vowed to the Journal that his office would not sit idly by if environmental laws were being trampled (see "Fresh Air," Feb. 20).
9.24.2007
APPELLANT’S OPENING BRIEF Gallegos v PL
APPELLANT’S OPENING BRIEF
CASE NO. A112028
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Appellant and Plaintiff,
vs.
PACIFIC LUMBER COMPANY, ET
AL,
Respondent and Defendant.
Case No. A112028
(Humboldt Superior Court
No. DR030070)
APPELLANT'S OPENING BRIEF
The Honorable Richard L. Freeborn
PAUL V. GALLEGOS, State Bar #161408
District Attorney
Humboldt County
825 Fifth Street
Fourth Floor
Eureka, California 95501
Telephone: (707) 445-7411
Facsimile: (707) 445-7416
E-Mail: pgallegos@co.humboldt.ca.us
Attorneys for Appellant and Plaintiff
THE PEOPLE OF THE STATE OF
CALIFORNIA
APPELLANT’S OPENING BRIEF
CASE NO. A112028
i
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
There are no interested entities or persons to list in this Certificate
per California Rules of Court, Rule 14.5(d)(3).
Interested entities or persons are listed below:
Name of Interested Entity or Person Nature of Interest
1.
2.
3.
4.
Please attach additional sheets with person or entity information if
necessary.
Dated: November 8, 2006
PAUL V. GALLEGOS
District Attorney,
Humboldt County
By:
PAUL V. GALLEGOS
Printed Name: P aul V. Gallegos
District Attorney
Address: 8 25 Fifth Street
4th Floor
Eureka, California 95501
State Bar # S tate Bar No. 161408
Party Represented: T he People of the State of California
APPELLANT’S OPENING BRIEF
CASE NO. A112028
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS................... i
TABLE OF AUTHORITIES ....................................................................... iii
INTRODUCTION ........................................................................................ 1
STATEMENT OF FACTS AND CASE ...................................................... 1
STANDARD OF REVIEW.......................................................................... 3
SUMMARY OF ARGUMENT .................................................................... 3
LEGAL DISCUSSION................................................................................. 4
I. CIVIL CODE SECTION 47(b) DOES NOT PRECLUDE
THE PEOPLE'S UCL LAWSUIT BECAUSE THE PEOPLE
WERE NOT A PARTY TO THE CEQA PROCESS........................ 4
II. THE NOERR-PENNINGTON DOCTRINE IS NOT A
DEFENSE IN THE PEOPLE'S UCL LAWSUIT AGAINST
PL. ...................................................................................................... 5
A. THE NOERR-PENNINGTON DOCTRINE
PROTECTS LOBBYING, NOT MATERIAL
MISREPRESENTATIONS IN AN
ADJUDICATORY PROCEEDING
B. GIVING FALSE INFORMATION TO AN
ADJUDICATIVE ADMINISTRATIVE AGENCY
FOR THE PURPOSE OF DECEIVING THEM IN
THEIR ADJUDICATIVE ROLE IS NOT
LOBBYING, IT IS FRAUD
C. NOERR-PENNINGTON IS NOT A DEFENSE
WHEN THE UCL LAWSUIT IS BROUGHT BY
THE GOVERNMENT ACTING TO ENFORCE
ITS LAWS
III. THE ALLEGATIONS IN THE PEOPLE'S COMPLAINT
WERE THAT PL'S MATERIAL MISREPRESENTATIONS
UNDERMINDED THE ENTIRE CEQA PROCEEDINGS
AND THE COURT HAD NO LEGAL AUTHORITY TO
DECIDE OTHERWISE................................................................... 17
IV. THE UCL APPLIES TO BOTH SINGLE AND MULTIPLE
TRANSACTIONS. .......................................................................... 26
CONCLUSION........................................................................................... 28
CERTIFICATE OF COMPLIANCE.......................................................... 29
APPELLANT’S OPENING BRIEF
CASE NO. A112028
iii
TABLE OF AUTHORITIES
State Cases
American Products Co., Inc. v. Law Offices of Geller, Stewart, Foley, LLP
(2005) 134 Cal.App.4th 1332.................................................................... 4
Committee on Children's Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197............................................................................ 3,17
Hewlett v. Squaw Valley Ski Corp.
(1997) 54 Cal.App.4th 499...................................................................... 27
Kasky v. Nike.
(2002) 27 Cal.4th 939................................................................................ 8
Kashiam v. Harriman
(2002) 98 Cal.App.4th 892........................................................................ 4
People v. Pacific Land Research Co.
(1977) 20 Cal.3d 10................................................................................ 15
Rubin v. Green
(1993) 4 Cal.4th 1187................................................................................. 4
Silberg v. Anderson.
(1990) 50 Cal.3d 205................................................................................. 3
Stopp Youth Addiction, Inc. v. Lucky Stores, Inc.
(1998) 17 Cal.4th 553.............................................................................. 27
United Farm Workers of America v. Dutra Farms
(2000) 83 Cal.App.4th 1146.................................................................... 27
Federal Cases
Amarel v. Connell
(9th Cir. 1996) 102 F.Supp.3d 1494 ......................................................... 6
California Motor Transp. Co. v. Trucking Unlimited,
(1972) 404 U.S. 508 ................................................................... 6,11,16,17
Columbia Steel Casting v. Portland General Electric Co.
(9th Cir. 1996) 111 F.3d 1427................................................................... 8
Eastern RR Presidents Conference v. Noerr Motor Freight Inc.
(1961) 365 U.S. 127 .................................................................................. 5
APPELLANT’S OPENING BRIEF
CASE NO. A112028
iv
Federal Prescription Serv., Inc. v. American Pharmaceutical Ass'n
(D.C. Cir. 1987) 663 F.2d 253 ................................................................ 12
George R. Whitten, Jr. v. Paddock Pool Builders, Inc.
(1st Cir. 1996) 424 F.2d 25 ............................................................ 9,10,11
Kottle v. Northwest kidney Centers
(9th Cir. 1998) 146 F.3d 1056................................................................ 12
Liberty Lake Investments, Inc. v. Magnuson
(9th Cir. 1993) 12 F.3d 155................................................................ 12,13
Nobelpharma AB v. Implant Innovations, Inc..
(Fed. Cir. 1998) 141 F.3d 1059............................................................... 12
United Mine Workers v. Pennington
(1965) 381 U.S. 657 .................................................................................. 5
Whelan v. Adell
(D.C. Cir 1995) 48 F.3d 1247 ................................................................. 12
Woods Exploration & Producing Co., Inc. v. Aluminum Co. of America
(5th Cir. 1971) 438 F.2d 1286................................................................... 7
State Statutes & Codes
Business and Professions Code
§ 17200......................................................................................... 1,4,26,27
§ 17204.................................................................................................... 15
Civil Code
§ 47..................................................................................................... 1, 2,4
Proposition 64 …………………………………………………………… 15
APPELLENT’S OPENING BRIEF
CASE NO. A112028
1
INTRODUCTION
In this case, the trial court ruled that the People’s Business &
Professions Code § 17200 (“UCL”) lawsuit for fraud against Pacific
Lumber Company, et al. (“PL”), seeking civil penalties and restitution, was
immune from prosecution under Civil Code § 47’s litigation privilege and
the “Noerr-Pennington doctrine.” The trial court also determined, contrary
to the allegations in the complaint, that PL’s misrepresentations did not
undermine the administrative agency’s decision; and, contrary to law, that
the UCL is not applicable to single transactions and the complaint alleges a
single transaction.
None of these conclusions are correct. Specifically: (i) the litigation
privilege does not apply to the People’s UCL lawsuit because the People
were not a party to the underlying CEQA process; (ii) the Noerr-
Pennington doctrine is not applicable to this case because PL wasn’t
lobbying government - they were applying for a timber harvest permit; and
the lawsuit is a law enforcement action of the People of the State of
California, not an individual or a non-government entity; (iii) the
allegations in the complaint that PL’s material misrepresentations
undermined the entire proceeding is a factual issue that cannot be resolved
by demurrer; and (iv) by law, the UCL applies to a single act of fraud.
STATEMENT OF FACTS AND CASE
The People bring this Business & Professions Code § 17200
(“UCL”) lawsuit against Pacific Lumber Company, et al. (“PL”), seeking
civil penalties and restitution. The People allege that PL intentionally
misrepresented crucial facts in an adjudicative administrative procedure
governed by the California Environmental Quality Act (“CEQA”), resulting
APPELLENT’S OPENING BRIEF
CASE NO. A112028
2
in the circumvention of a critical step in the CEQA process: recirculation of
the Environmental Impact Report (“EIR”) for public comment. As a result,
PL was permitted to log more timber than it otherwise would have been
allowed. The increased harvest rate resulted in increased landslides, water
pollution, sedimentation, and impairment of northern California watersheds
and fisheries that threaten the health and safety of residents and public
infrastructure. PL benefited and continues to benefit from its deceit.
PL has thrice demurred to People’s successive complaints, and the
matter is now at issue following the trial court’s order sustaining PL’s
demurrer to the Second Amended Complaint. [CT 614-615.]
The basis for the trial court’s ruling are that: (1) Civil Code § 47’s
litigation privilege bars this lawsuit; [CT 595-602]; (2) the “Noerr-
Pennington doctrine” protecting the rights to lobby or petition the
government bars this lawsuit; [CT 605, 610]; (3) PL’s misrepresentations
did not undermine the agency decision; [CT 609-611]; and (4) the UCL is
directed at ongoing wrongful conduct, not single transactions, and the
complaint alleges a single transaction. [CT 611-612.]
The trial court’s conclusions are incorrect. First, the litigation
privilege does not apply to the People’s UCL lawsuit because the People
were not a party to the underlying CEQA process. Second, the Noerr-
Pennington doctrine is not a defense to the People’s UCL lawsuit because
(i) PL’s conduct amounted to fraud against the People of the State of
California - not lobbying; and (ii) the lawsuit is a law enforcement action
designed to protect the public. Third, the court’s failure to accept the
allegations in the complaint, to wit: PL’s material misrepresentations
undermined the entire proceeding, as true when ruling on the demurrer as is
APPELLENT’S OPENING BRIEF
CASE NO. A112028
3
required by law was an abuse of the court’s authority. Fourth, it is well
settled law that UCL applies to a single act of fraud.
STANDARD OF REVIEW
A demurrer tests only the legal sufficiency of a pleading. Committee
on Children’s Television, Inc. v. General Foods Corporation (1983) 35
Cal.3d 197, 213-214. In reviewing a judgment of dismissal pursuant to a
demurrer, the Court must assume the truth of all properly pleaded material
allegations of the complaint. Silberg v. Anderson (1990) 50 Cal.3d 205,
210.
SUMMARY OF ARGUMENT
The trial court’s ruling is contrary to the law, public policy and the
facts alleged in the complaint. Specifically: (i) the People were not a party
to the underlying CEQA process so the litigation privilege does not apply to
this lawsuit; (ii) the People’s UCL lawsuit against PL is a law enforcement
action of the People of the State of California and PL wasn’t lobbying
government - they were applying for a timber harvest permit, so the Noerr-
Pennington doctrine does not apply to this lawsuit either; (iii) the
allegations in the complaint were that PL’s material misrepresentations
undermined the entire proceeding and the court had no authority to decide
otherwise; and (iv) the UCL applies to a single act of fraud.
Therefore, this Court should overrule the trial court’s order in its
entirety.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
4
LEGAL DISCUSSION
I.
A. CIVIL CODE SECTION 47(b) DOES NOT PRECLUDE
THE PEOPLE’S UCL LAWSUIT BECAUSE THE
PEOPLE WERE NOT A PARTY TO THE CEQA
PROCESS.
The trial court ruled that the People’s Business and Professions
Code § 17200 lawsuit against PL is barred by Civil Code § 47(b)’s
litigation privilege. The People’s lawsuit alleges that PL committed fraud
in an adjudicatory administrative CEQA process. The People were not a
party to that action. Therefore, PL’s fraud is not protected by the litigation
privilege.
Specifically, in Rubin v. Green (1993) 4 Cal.4th 1187, the Supreme
Court ruled that the litigation privilege does not preclude lawsuits under
Business and Professions Code § 17200 by non-party litigants. This ruling
was followed in Kashian v. Harriman (2002) 98 Cal.App.4th 892, (Where
fraud occurred in litigation to which the plaintiff was not a party, the
plaintiff could sue for redress from fraud and the litigation privilege would
not protect the defendant); and in American Products Co., Inc. v. Law
Offices of Geller, Stewart and Foley, LLP (2005) 134 Cal.App.4th 1332,
(The litigation privilege is not a defense in an unfair competition action if
the plaintiff was not a party to the earlier litigation in which the allegedly
privileged conduct occurred.)
APPELLENT’S OPENING BRIEF
CASE NO. A112028
5
II.
THE NOERR-PENNINGTON DOCTRINE IS NOT A DEFENSE IN
THE PEOPLE’S UCL LAWSUIT AGAINST PL.
A.
THE NOERR-PENNINGTON DOCTRINE PROTECTS LOBBYING,
NOT MATERIAL MISREPRESENTATIONS IN AN
ADJUDICATORY PROCEEDING.
For the Petition Clause of the First Amendment to the United States
Constitution, (U.S. Const. amend. I, cl. 6.) to be a meaningful protection of
the democratic process, citizens must be immune from some forms of
liability for their efforts to persuade government officials to adopt policy or
perform their functions in a certain way. Accordingly, in Eastern RR
Presidents Conference v. Noerr Motor Freight, Inc., (1961) 365 U.S. 127,
the Court rejected antitrust liability stemming from an aggressive lobbying
campaign by railroads to persuade states to adopt legislation that would
severely limit competition from truckers. The Court explained, "in
a representative democracy such as this . . . the whole concept of
representation depends upon the ability of the people to make their wishes
known to their representatives," Id. at 137, therefore, the Sherman Act does
not apply to the railroads' advocacy of legislative action, i.e., lobbying,
even if there is an anticompetitive intent. Id. at 138.
The Noerr-Pennington doctrine, which evolved out of the Noerr
decision and its progeny, has been found to apply to activities aimed at the
executive and judicial branches of government and to administrative
agencies. United Mine Workers v. Pennington, (1965) 381 U.S. 657, 669-
APPELLENT’S OPENING BRIEF
CASE NO. A112028
6
70, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965) (executive); California Motor
Transp. Co. v. Trucking Unlimited, (1972) 404 U.S. 508, 510, 30 L. Ed. 2d
642, 92 S. Ct. 609 (judicial and administrative agencies). The Court
explained that " the right to petition extends to all departments of the
Government," and therefore, "the same philosophy governs the approach of
citizens or groups of them to administrative agencies (which are both
creatures of the legislature, and arms of the executive) and to courts, the
third branch of Government." California Motor Transp., 404 U.S. at 612-
13. Noerr-Pennington has also been applied to both state and federal
antitrust claims that allege anticompetitive activity in the form of lobbying
before any branch of either federal or state government. Amarel v. Connell,
(9th Cir. 1996) 102 F.3d 1494, 1524.
B.
GIVING FALSE INFORMATION TO AN ADJUDICATIVE
ADMINISTRATIVE AGENCY FOR THE PURPOSE OF
DECEIVING THEM IN THEIR ADJUDICATIVE ROLE IS NOT
LOBBYING, IT IS FRAUD.
As indicated above, the Noerr-Pennington doctrine protects
lobbying. However, the process of providing information to an
administrative agency charged with a regulatory fact-finding procedure,
much like obtaining a building permit or other permits from administrative
agencies, is not lobbying.
Specifically, PL was not seeking a change in existing rules of law or
policy. Rather, PL sought a decision that would allow them to harvest
enough timber to provide them a certain flow of income. Because they
thought accurate information about the environmental impact of their
APPELLENT’S OPENING BRIEF
CASE NO. A112028
7
desired harvest rate would cause the administrative agency charged with
issuing a harvest rate permit to deny their requested harvest rate, they gave
the administrative agency false information about the environmental impact
of that desired harvest. The above conduct is fraud, not lobbying.
As stated by the Federal Court in Woods Exploration & Producing
Co., Inc. v. Aluminum Co. of America (5th Cir. 1971) 438 F.2d 1286:
Basic to Noerr is a belief that regulation of competition by the
political process is legitimate and not proscribed by the Sherman
Act, an enactment which is itself a political decision. For the
political process to be effective there must be freedom of access,
regardless of motive, to ensure the ‘right of the people to inform
their representatives in government of their desires with respect to
the passage or enforcement of laws.’ [citations omitted.] Where
these political considerations are absent the Noerr doctrine is
inapplicable. [citations omitted.] The policies of the Sherman Act
should not be sacrificed simply because defendants employ
governmental processes to accomplish anti-competitive purposes.
Otherwise, with governmental activities abounding about us,
government could engineer many to antitrust havens. We think that
the doctrine should not be extended unless the factors upon which
Noerr rested are present and require the same result. In Trucking
Unlimited v. California Motor Transport Co., [citations omitted], the
Ninth Circuit refused to immunize under Noerr a scheme whereby
trucking companies conspired to oppose before state and federal
regulatory commissions all applications by competitors for the
issuance, transfer, or registration of operating rights. Characterizing
the licensing procedure as adjudicative, the court felt that the
defendants were not seeking to influence a policymaking function;
rather they were attempting to undermine a well-defined policy with
regard to licensing operators by blocking and discouraging access to
the governmental agencies. Similarly, in the instant case there has
been no attempt by defendants through the filing of false
nominations to influence the policies of the Railroad Commission.
The germination of the allowable formula was political in the Noerr
sense, and thus participation in those rule-making proceedings would
have been protected. But the formula's subsequent implementation
is apolitical. Once the rule is promulgated, defendants may not
APPELLENT’S OPENING BRIEF
CASE NO. A112028
8
plead immunity in their attempt to undermine its efficacy for anticompetitive
purposes.
Id. at 1296-1297
The Woods case, supra, is interesting in its factual resemblance to
the case at bar. In Woods the defendant, a natural gas producer, was not
seeking to influence a policymaking function, rather they misrepresented
the volume of gas they expected to market from their wells to the governing
state agency to reduce the production allowables. In the Peoples case
against PL, PL was not trying to persuade the administrative agency
charged with fact-finding and issuing a harvest permit to change the rules
associated with the fact-finding process or the issuance of a harvest permit.
Rather, PL was trying to obtain a permit to harvest an amount of timber that
would result in a desired profit. Because PL thought that accurate
information about the environmental impact of their desired harvest rate
would result in their not being able to obtain a permit that would allow
them to harvest timber at a rate that would give them their desired profit,
they gave the agency false information about the anticipated environmental
impact of their desired harvest rate.
In Woods, like PL in this case, the defendant sought to protect their
misrepresentations by invoking Noerr-Pennington doctrine. However, in
Woods, the Court rejected that attempt distinguishing attempts to invoke
policy-making powers of agencies and attempts to misrepresent the facts to
get a favorable permit. See also: Kasky v. Nike, (2002) 27 Cal.4th 939, 969
(“[W] hen a corporation, to maintain and increase its sales and profits,
makes public statements defending labor practices and working conditions
at factories where its products are made, those public statements are
commercial speech that may be regulated to prevent consumer deception.”);
Columbia Steel Casting v. Portland General Electric Co. (9th Cir. 1996)
APPELLENT’S OPENING BRIEF
CASE NO. A112028
9
111 F. 3d 1427, 1446 ("Applying to an administrative agency for approval
of an anticompetitive contract is not lobbying within the meaning of the
Noerr-Pennington doctrine.").)
In George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc. (1st
Cir. 1970) 424 F.2d 25, the First Circuit discussed the difference, for
purposes of applying Noerr-Pennington doctrine between political
lobbying, which is protected, and self-serving attempts to market one’s
wares, which is not. In Whitten, for purposes of summary judgment, the
defendant manufacturer of swimming pool hardware admitted to “that it
had combined with dealers and others to effect the use of its specifications
in the public swimming pool industry, that its specifications were so drawn
that only it could comply, and that its purpose was to eliminate
competition.” Id. at 27. The defendant further admitted that such conduct
could violate the Sherman Anti-Trust Act, but claimed Noerr-Pennington
immunity. Id. The District Court granted summary judgment but the
Appeals Court reversed, pointing out that the defendant’s attempts to better
its market position was not political lobbying protected by Noerr
Pennington.
Analyzing Noerr, the Court said:
The key to this decision, in our opinion, is the Court's heavy
emphasis on the political nature of the railroad's activities and its
repeated reference to the ‘passage or enforcement of laws.’ The
entire thrust of Noerr is aimed at insuring uninhibited access to
government policy makers. A pluralistic society moves by many
motives. The hope, supported by history, is that permitting every
interest to be heard will produce a tolerable amalgam responsive to
the needs of a given time. But the efforts of an industry leader to
impose his product specifications by guile, falsity, and threats on a
harried architect hired by a local school board hardly rise to the
dignity of an effort to influence the passage or enforcement of laws.
By ‘enforcement of laws’ we understand some significant policy
APPELLENT’S OPENING BRIEF
CASE NO. A112028
10
determination in the application of a statute, not a technical decision
about the best kind of weld to use in a swimming pool gutter. Noerr
alone, then, does not support Paddock's position.
The Court further said:
The state legislatures, by enacting statutes requiring public
bidding, have decreed that government purchases will be made
according to strictly economic criteria. Paddock [defendant] is free
to seek legislative change in this basic policy, but until such change
is secured, Paddock's dealings with officials who administer the bid
statutes should be subject to the same limitations as its dealings with
private consumers. Indeed, to hold otherwise might impair the
effectiveness of competitive bidding. [Citation omitted.] We
conclude, therefore, that the immunity for efforts to influence public
officials in the enforcement of laws does not extend to efforts to sell
products to public officials acting under competitive bidding
statutes.
This conclusion does not, in our view, encroach on the
freedom of speech and right to petition protected by the First
Amendment. The First Amendment does not provide the same
degree of protection to purely commercial activity that it does to
attempts at political persuasion. [Citations omitted] Moreover, the
First Amendment does not prevent government from adopting
reasonable rules for regulating the conduct of those who seek its
favor. [Citations omitted.] Finally, Paddock's right to tout its wares
to government agencies, unlike the right to seek legislation involved
in Noerr, is purely a creature of statute and must be exercised within
the confines of bidding procedures designed to insure the maximum
possible competition for the government's expenditures. In the light
of these considerations, we see no constitutional objection to
requiring that Paddock observe the same limitations in dealing with
the government as it would in dealing with private consumers.”
Whitten 424 F. 2d at 33-34.
The court further observed that Noerr protects only attempts to
influence political rule making. “Noerr stressed the importance of free
access to public officials vested with significant policy-making discretion.
We doubt whether the Court, without expressing additional rationale,
APPELLENT’S OPENING BRIEF
CASE NO. A112028
11
would have extended the Noerr umbrella to public officials engaged in
purely commercial dealings when the case turned on other issues.” (Id. at
33.)
In this case, the CEQA process was an adjudicatory administrative
process where the administrative agency was charged with gathering
information for making a cost-benefit analysis of harvesting timber and for
determining what level of mitigation was necessary to minimize the
negative environmental impact of that logging. PL was not claiming that
such cost-benefit analysis should not be done or that there should be some
change in the CEQA process. Rather, they were using the CEQA process
to provide false information about the impact of their desired logging so
they could harvest more timber than they otherwise would have been able
to and would have to do less mitigation of the environmental harm caused
by that logging under the pretense of complying with the law. In essence,
PL deprived the agency of necessary information to do appropriate costbenefit
analysis as they were obligated to do on behalf of the People of the
State of California.
However broad the First Amendment right to petition may be, it
cannot be stretched to cover petitions based on known falsehoods.
“Misrepresentations, condoned in the political arena, are not immunized
when used in the adjudicatory process.” California Motor Transport v.
Trucking Unlimited (1972) 404 U.S. 508, 513. “Attempts to influence
APPELLENT’S OPENING BRIEF
CASE NO. A112028
12
governmental action through overtly corrupt conduct, such as bribes (in any
context) and misrepresentations (in the adjudicatory process), are not
normal and legitimate exercises of the right to petition, and activities of this
sort have been held beyond the protection of Noerr.” Federal Prescription
Serv., Inc. v. American Pharmaceutical Ass’n. (D.C. Cir. 1981) 663 F.2d
253, 263. “We see no reason to believe that the right to petition includes a
right to file deliberately false complaints.” Whelan v. Abell (D.C. Cir.
1995) 48 F.3d 1247, 1255. “Neither Noerr-Pennington nor the First
Amendment protects the conduct plaintiffs have alleged--namely, knowing
misrepresentations to state securities administrators and a federal court.”
Whelan v. Abell (D.C. Cir. 1995) 48 F.3d 1247, 1249. The Noerr-
Pennington doctrine does not provide immunity for a party where there is
“proof that a party’s knowing fraud upon, or its intentional
misrepresentations to, the court deprive the [prior] litigation of its
legitimacy. Liberty Lake Investments, Inc., v. Magnuson, (9th Cir. 1993) 12
F.3d 155, 159. “A fraudulent omission can be just as reprehensible as a
fraudulent misrepresentation.” Nobelpharma AB v. Implant Innovations,
Inc., (Fed. Cir. 1998) 141 F.3d 1059, (No Noerr-Pennington doctrine
immunity for party that fraudulently obtained patent.)
The trial court’s reliance on Kottle v. Northwest Kidney Centers (9th
Cir. 1998) 146 F.3d 1056, in rendering its decision is also misplaced.
Specifically, Kottle dealt with an entirely different situation. In Kottle the
APPELLENT’S OPENING BRIEF
CASE NO. A112028
13
entity providing false information to the adjudicative administrative agency
was not a party to the adjudicative process. Rather, they were the
established dialysis clinic that wanted to prevent Doctor Kottle from getting
a permit to open another facility so he would not take away their market
domination. The entrenched clinic lied about factual data relevant to the
need for and effects of the proposed facility. The agency relied on that
information in their decision to not issue the permit and Doctor Kottle sued
the entrenched clinic. The holding in Kottle would have been entirely
different if Doctor Kottle had providing false information to obtain his
permit as PL did in the Peoples case. Specifically, he would be facing
either a criminal prosecution or a UCL case brought against him by the
local prosecutor.
Finally, the Noerr-Pennington doctrine is not a defense if a party's
knowing fraud upon, or its intentional misrepresentations to, the judicial
proceeding or adjudicative administrative proceeding that the party is
before deprives the proceeding of its legitimacy rendering it a “sham”
proceeding. Liberty Lake Inv., Inc. v. Magnuson, (9th Cir. 1993) 12 F.3d
155, 158. The People’s complaint alleged that PL’s knowing
misrepresentations to the administrative agency charged with regulating
their timber harvesting deprived the adjudicatory process of its legitimacy
by preventing a meaningful initial EIR review and then mandatory
recirculation of the EIR because of the significance of the new information
APPELLENT’S OPENING BRIEF
CASE NO. A112028
14
which showed a concordant, rather than a contradictory, relationship,
between the Bear and Jordan Reviews. This rendered the proceeding a
“sham” and, once again, the Noerr-Pennington doctrine is not a defense to
the People’s UCL lawsuit against PL.
C.
NOERR-PENNINGTON IS NOT A DEFENSE WHEN THE UCL
LAWSUIT IS BROUGHT BY THE GOVERNMENT ACTING TO
ENFORCE ITS LAWS.
The most interesting and most important issue raised by the trial
court’s ruling is whether the Noerr-Pennington doctrine precludes a civil
law enforcement action brought by a District Attorney to protect the People
of the State of California from fraud committed upon them. This is an issue
of first impression that has the potential for profound social and legal
significance.
The People assert that the Noerr-Pennington doctrine does not
preclude UCL lawsuits brought by the Attorney General, district attorneys,
county counsels and city attorneys under their public protection authority.
Further, the People challenge PL to provide a case that holds that it does
preclude either a criminal or civil law enforcement action brought by a
District Attorney against a person or persons for knowing material
misrepresentations to an administrative agency engaged in an adjudicative
administrative proceeding involving the person or persons providing that
false information.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
15
A civil action brought by a governmental entity under UCL “is
fundamentally a law enforcement action designed to protect the public.”
People v. Pacific Land Research Co., (1977) 141 Cal.3d. 10, 17. The
Supreme Court’s finding in People v. Pacific Land Research was reiterated
in the most recent amendment to 17204, made by the passage of
Proposition 64 in 2004 by the California electorate. The initiative’s finding
and declaration of purpose provided that “[I]t is the intent of California
voters in enacting this act that only the California Attorney General and
local public officials be authorized to file and prosecute actions on behalf
of the general public.” (Initiative Measure (Prop. 64) § 1(f), emphasis
added.) The initiative further declared that “[I]t is the intent of California
voters in enacting this act that the Attorney General, district attorneys,
county counsels, and city attorneys maintain their public protection
authority and capability under the unfair competition laws.” Id. at § 1(g),
emphasis added. This stated purpose is in accord with the long history of
the UCL. (See, e.g,, People v. Centr-O-Mart (1950) 214 P.2d 378, 380
(The Attorney General could pursue actions under the predecessor statute to
enforce the State’s interest in public welfare.))
The People’s lawsuit against PL is legislatively authorized to protect
the public from fraudulent and harmful business practices. It is a legitimate
assertion of the government’s police or regulatory power and one of the
methods a District Attorney has to fulfill the obligation of enforcing
APPELLENT’S OPENING BRIEF
CASE NO. A112028
16
California laws and regulations that affect the health, welfare and safety of
the People of the State of California. Therefore, providing PL immunity
from the People’s lawsuit against them for fraud under the circumstances in
this case is absurd. Such a ruling not only encourages misrepresentation
and deceit in every situation where governmental agencies are tasked with
regulating activities - it rewards it. If this logic is applied to building
permits, air emissions regulations, water quality regulations, and every
other activity that government regulates for the purpose of protecting the
public and the court will have completely eviscerated government’s ability
to protect its citizenry. This outcome simply cannot be the law if the law is
just.
Each of the cases PL cited in support of their position that the Noerr-
Pennington doctrine precluded the People’s lawsuit was brought by a
private party against a competitor. In each instance, one party wished to
show that a business competitor had transgressed the permissible limits on
trying to persuade a governmental agency to grant favors or advantages.
The difference between a lawsuit between competitors, and one brought by
the People as part of their police and regulatory power is profound.
Worth noting is that the court in California Motor Transport v.
Trucking Unlimited (1972) 404 U.S. 508, finding the Noerr-Pennington
doctrine was inapplicable in an administrative context, observed that it has
never been thought unconstitutional to make a course of conduct illegal
APPELLENT’S OPENING BRIEF
CASE NO. A112028
17
simply because the conduct was wholly or partly carried out by means of
language. California Motor Transport v. Trucking Unlimited, supra, 404
U.S. at 613 “Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.” Id.
Applied to the instant case, turning the right to petition government
into a right to lie in an adjudicative administrative hearing makes it
impossible for a regulating agency to fulfill its responsibility of regulating.
In the context of logging on steep, unstable slopes in watersheds containing
people, their homes and community infrastructures, such an expansion
leaves those people and their communities wholly unprotected and without
any ability to remedy harms inflicted upon them by unconstrained logging.
III.
THE ALLEGATIONS IN THE PEOPLE’S COMPLAINT WERE
THAT PL’S MATERIAL MISREPRESENTATIONS
UNDERMINDED THE ENTIRE CEQA PROCEEDINGS AND THE
COURT HAD NO LEGAL AUTHORITY TO DECIDE
OTHERWISE.
A demurrer tests only the legal sufficiency of a pleading. Committee
on Children’s Television, Inc. v. General Foods Corporation (1983) 35
Cal.3d 197, 213-214.)
The trial court states that the misrepresentation could have no effect
on the proceeding because the allegedly false report and the corrected
report were both filed after the November 16, 1998 cutoff date and
APPELLENT’S OPENING BRIEF
CASE NO. A112028
18
therefore CDF was not obliged to consider them. (TC order p 21.) Further
the trial court states that we have not explained how CDF initially arrived at
a lower allowable timber harvest figure than PL was later able to obtain,
even without the corrected report. (TC order p 22.) In the trial court’s view
of the allegations, because CDF originally adopted a long-term sustained
yield plan (LTSY) known as SYP alternative 25a, and only changed that
plan pursuant to PL’s later persuasive efforts, we have not shown that the
cause of the increased allowance was the fraud. (TC order p 20.)
This oversimplified summary of our allegations is both incorrect and
speculative. Specifically, the People alleged that the Jordan creek data –
which PL falsified and then hid from regulators and the public so as to
conceal its importance – critically undermined the validity of studies made
in other watersheds about the effects of logging on steep slopes, and the
effectiveness of the HCP mitigations in reducing hazardous logging. Had
the Jordan Creek data been available to CDF early in the process, as it
should have been, PL would have had no credible defense against the
constraints necessarily imposed by the conclusions of the Bear Creek
Report, and CDF would have had no credible rationale for even the initial
rate of logging in 25a, which was lower than PL finally obtained. The
People argued that even 25a was unsupportable, since 25a presumed and
relied upon the accuracy of False Jordan report to overcome the constraints
of the Bear Creek conclusions.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
19
The People maintain that the Corrected Jordan, insofar as it
corroborated the findings in the Bear Creek report, would have required
CDF to approve a rate of logging lower, not higher than 25a. Therefore, PL
could never have persuaded the agency to allow as much logging as it did.
The trial court also impugned the allegations because the Water
Quality agency required the Bear and Jordan reviews, as though compelled
evidence, irrespective of its origin, were not to be considered in this
process. Such is not the case; substantive evidence in a quasi-judicial
administrative process such as this is considered because it bears on
adjudicatory facts. In any event, the surveys were in fact ordered by Water
Quality in conjunction with CDF and other state regulatory agencies,
including DFG, a signatory to the HWA, a fact misunderstood by Judge
Freeborn because he prematurely and improperly considered it at the
demurrer stage without the benefit of a fact-finding process.
Judge Freeborn’s similar reliance on dates of submission is marred
by his confusion flowing from the inherently inadequate factual airing in a
demurrer.
The People alleged the importance of the Jordan Creek data and
expect to present witnesses who will testify that the outcome of the
proceeding would have been entirely different had the fraud not occurred.
The trial court went well beyond its role in reviewing a demurrer when it
APPELLENT’S OPENING BRIEF
CASE NO. A112028
20
decided that the Jordan creek data, because of the timing of events, could
have had no effect on the outcome.
Had there been only the Correct Jordan survey demonstrating
concordance between Bear and Jordan with respect to the predicted
incidence of landslides pursuant to PL’s proposed HCP/SYP, even the
logging rate approved in 25a would have been untenable, since 25a was
approved reliant on False Jordan.
As it played out, the entire proceeding was undermined and made
nugatory by this fraud because the fact of False Jordan followed by
Corrected Jordan made recirculation of the EIR for further review by the
public and the agencies, mandatory, had Correct Jordan been submitted
properly. Significant new information requires recirculation under CEQA.
Correct Jordan is obviously significant in this context, because it affirmed
the acknowledged significance of Bear - that PL’s proposed HCP/SYP
would violate water law, and constitute a nuisance, both untenable and
unlawful outcomes.
We recapitulate some of the crucial facts from our allegations.
When Dr. Leslie Reid reviewed the PL Sediment Source Survey
(SSI) for Bear Creek in May, 1998, at the request of the EPA and
NCRWQCB, she found a 9.6 fold increase in landsliding rates from
hillslopes selectively logged under modern forest practice rules, as
compared to partially recovered lands logged prior to the Forest Practice
APPELLENT’S OPENING BRIEF
CASE NO. A112028
21
Rules. At the request of the NCRWQCB, Dr. Reid prepared a calculation
of a cutting rate for the Bear Creek watershed that would result in
attainment of Basin Plan objectives, including recovery of the watershed.
Assuming HCP/SYP protections to be entirely effective and sufficient to
avoid any increase in landslides over the naturally occurring background
rate, and disregarding the differences between old growth forest stands and
logged lands un-reentered for >15 years, Dr. Reid concluded that 1.5% of
the watershed could be logged annually. This rate did not take into account
logging-related hydrologic alterations, which would further limit the rate of
harvest significantly. She emphasized that the logging would have to be
“dispersed through time in any given watershed.”
Dr. Reid’s final observations in her review of the SSI for Bear Creek
sounded a death knell for PL’s desired harvest rates, dependent as they
were on maximizing the allowable harvest of mass wasting areas of
concern: “It should be noted that soils and bedrock similar to those of Bear
Creek watershed are also found through much of the North Fork Mattole
watershed and neighboring watersheds along the west valley wall of the
Eel; similar soil types are found in parts of the Freshwater Creek and Elk
River watersheds. Information and conclusions drawn from the Bear creek
watershed are thus potentially relevant through a large area.”
Rather than conduct the SSI of the neighboring (to Bear) small
watershed of Jordan Creek as scheduled, PL/PWA evaluated NFER instead,
APPELLENT’S OPENING BRIEF
CASE NO. A112028
22
and released the NFER SSI. It was reviewed by Dr. Reid and Frank
Reichmuth of NCRWQCB. Internal inconsistencies in data prevented a
final review, but a 13.1-13.6 fold increase in mass wasting from harvesting
under modern Forest Practice Rules (FPRs) was found, similar to the Bear
Creek SSI. “As it stands, it does not appear that the [mass wasting
avoidance] strategy will be capable of avoiding the kinds of failures
documented in the Bear Creek report. The strategy depends on site-level
inspections by a geologist.
The problem for PL was that the concepts and approach from Dr.
Reid’s Bear Creek Review and calculations would be generalized to other
watersheds. These findings were submitted as comments to the Draft
Environmental Impact Statement/DEIReport (DEIS/EIR) for the HCP/SYP,
and unless somehow discredited or otherwise neutralized, they would
undermine the basis for PL’s SYP harvest rate projections. In order to
attack the generalizations from Dr. Reid’s review, PL/PWA submitted a
“draft” Jordan Creek SSI demonstrating the opposite findings from that of
Bear Creek.
What happened next is best explained in an excerpt from Dr. Reid’s
review of a geologist’s report for a PL THP in the North Fork Mattole:
“The second new contribution to understanding of landslide distribution
came with the long-awaited release of the PWA report on landslide
distribution in Jordan Creek watershed (PWA 1999), located immediately
APPELLENT’S OPENING BRIEF
CASE NO. A112028
23
north of Bear Creek watershed. This event, however, was marked by
considerable confusion, because the actual contents of the report were
found to directly contradict the results that had been quoted earlier by PWA
(1998), Dr. D. Opalach (1998) of Pacific Lumber Company, and USFWS
and CDF (1999). Between 10 November 1998 and 29 January 1999, the
results were said to demonstrate that in Jordan Creek, most recent
landslides were associated with older logging, and that recently logged
slopes showed comparatively low rates of landslides. This “result” was the
primary piece of evidence used to assert that results of the Bear Creek
report could not be employed to inform management decisions in nearby
areas with similar geology, topography, land-use history, and climate: if a
neighboring watershed shows the opposite pattern as Bear Creek, then it is
clear that results cannot be generalized.
“When the report was finally released, however, it became clear that
the actual results of the study showed a pattern very similar to that
measured in Bear Creek: “In Jordan Creek, 60% of the landslides and 77%
of the landslide sediment delivery came from 50% of the watershed which
had been harvested within the last 15 years” (PWA 1999, p 27.) In other
words, rates of landslide sediment delivery from recently logged lands in
Jordan Creek watershed are 3.3 times higher than those from partially
recovered forest (calculated as the ratio between (0.77/0.50) and
(0.23/0.50).) Clearly, results in Jordan Creek support those from Bear
APPELLENT’S OPENING BRIEF
CASE NO. A112028
24
Creek, removing the argument that had been used to prevent Bear Creek
results from being used to inform management decisions on similar lands
nearby.” (Review of “Response to review comments of the Upper Allwardt
Creek THP” by Dr. Leslie Reid, 6/7/00.)
“Draft Jordan Creek SSI” was released for this 5000-acre watershed,
and no corrected version replaced it until it was too late.
The People further alleged that the entire proceeding was
undermined and made nugatory by this fraud because, had the corrected
Jordan Creek data been provided in a timely manner, the case would have
been recirculated to the public for further input and a meaningful review, in
light of the accurate data. The review that did take place was irrevocably
tainted by the false data. The corrected data was uniquely important in this
case because it undermined the key evidence upon which CDF relied to
refute the implications of the Bear creek conclusions that PL’s proposed
HCP/SYP inadequately mitigated the adverse environmental consequences
of PL’s proposed rate of logging.
The People alleged that the CDF would have recirculated the EIR
had it been aware of the false Jordan Creek data, because not only was that
data misleading as to the effect of logging in the Jordan Creek watershed,
but also it undermined the generality of conclusions about steep slope
logging in all the relevant watersheds. This false data was the weightiest
data showing no pernicious landslide effects from logging in steep terrain,
APPELLENT’S OPENING BRIEF
CASE NO. A112028
25
and therefore served to undermine the correctness of data from all other
watersheds. It was therefore supremely important data with the potential to
precipitate wholly different decisions as to circulation of the EIR and final
formulation of appropriate THP’s.
These are the facts the People plead; their truth cannot be
demonstrated without a trial. These allegations are clearly sufficient to
demonstrate how important that corrected data was to a valid procedure and
a correct result. For purposes of a demurrer, the allegations were enough to
demonstrate both extrinsic fraud and the sham nature of the tainted
proceeding.
Worth noting is that the trial court order is based on matters which
the court stated were beyond the record. The trial judge said: “While not
directly mentioned in the pleadings, one must consider the inception of the
CEQA process in this case. The Headwaters Agreement was not some
covert, dark of night, operation instigated solely by PALCO. It was a wellpublicized
coming together of a number of interested parties with a wide
divergence of interests in politics, business, ecology, flood control, revenue,
employment, and other factors. The process was open to one and all, and
the 80,000 page administrative record mentioned in EPIC, supra, attests to
the extent to which many contributed to the record. This complex and
extensive proceedings [sic] was not some fabrication of PALCO initiated as
APPELLENT’S OPENING BRIEF
CASE NO. A112028
26
a ‘sham’ to take advantage of others.” (Trial Court Order, pp. 18-19,
emphasis added).
The trial court erred in deciding this issue on the pleadings because
factual issues are unsuitable for demurrer resolution. We further submit
that the trial judge was not yet in a position to appreciate the significance of
PL’s misrepresentations, because we have not had an opportunity to build
the factual context in which these misrepresentations were made. That is
why the law wisely provides that facts are not to be tried on demurrer.
IV.
THE UCL APPLIES TO SINGLE OR TO MULTIPLE
TRANSACTIONS
The trial court stated that the UCL requires a “practice,” that is
ongoing wrongful conduct, envisioning more than a single transaction
citing Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499. [Trial
Court Order pp. 22-23] Hewlett has not been valid law since 1992 when
the Legislature amended § 17200 to provide that "unfair competition shall
mean and include any unlawful, unfair or fraudulent business act or
practice. . . ." Business and Professions Code § 17200. That change has
also been reflected in court decisions.
“In response to the California Supreme Court's 1988
ruling that a "business practice" under Business and
Professions Code section 17200 must encompass more than a
single transaction [see State of California ex rel. Van De
Kamp v. Texaco, Inc. (1988) 46 Cal. 3d 1147, 1169-1170],
APPELLENT’S OPENING BRIEF
CASE NO. A112028
27
the Legislature amended the statute in 1992 to provide that
‘unfair competition shall mean and include any unlawful,
unfair or fraudulent business act or practice. . . .’ (§ 17200,
italics added.) The California Supreme Court has interpreted
the 1992 amendment as overruling that part of Van De Kamp
that interpreted the statute to require more than a single ‘act.’
(Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17
Cal. 4th 553.) Accordingly, under the current version of the
statute, even a single act may create liability. (Klein v. Earth
Elements, Inc. (1997) 59 Cal. App. 4th 965, 968, fn. 3;
Podolsky v. First Healthcare Corp. (1996) 50 Cal. App. 4th
632, 653.)
“Although appellants cite Hewlett v. Squaw Valley Ski
Corp. (1997) 54 Cal. App. 4th 499, it is not controlling. This
is because Hewlett involved a suit filed in 1989, and the
Hewlett court therefore applied the statute as it read then,
rather than as amended in 1992. (Id. at pp. 514, 518.).”
(United Farm Workers of America v. Dutra Farms (2000) 83
Cal. App. 4th 1146, 1163-1164.)
The trial court is plainly wrong in dismissing this case on the ground
that the UCL requires more than a single transaction.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
28
More importantly, the complaint at issue alleged a fraudulent course
of conduct. Specifically, it alleges that PL manufactured false data,
submitted it to the adjudicatory administrative agency, sent a correction of
the false data to the wrong individual in a manner that ensured it would not
be read in time to influence the decision, and now profits by its fraud by
logging in excess of safe and allowable limits, inflicting continuous harm
on the watersheds of Humboldt County.
CONCLUSION
The trial court’s ruling is contrary to the law, public policy and the
facts alleged in the complaint. Specifically: (i) the People were not a party
to the underlying CEQA process so the litigation privilege does not apply to
this lawsuit; (ii) the People’s UCL lawsuit against PL is a law enforcement
action of the People of the State of California and PL wasn’t lobbying
government - they were applying for a timber harvest permit, so the Noerr-
Pennington doctrine does not apply to this lawsuit either; (iii) the
allegations in the complaint were that PL’s material misrepresentations
undermined the entire proceeding and the court had no authority to decide
otherwise; and (iv) the UCL applies to single act and multiple acts of fraud.
Therefore, this Court should overrule the trial court’s order in its
entirety.
Dated: November 27, 2006 PAUL V. GALLEGOS
District Attorney,
Humboldt County
By:
PAUL V. GALLEGOS
Attorneys for Appellant and Plaintiff
THE PEOPLE OF THE STATE OF
CALIFORNIA
APPELLENT’S OPENING BRIEF
CASE NO. A112028
29
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using
proportionately double-spaced 13 point Times New Roman typeface.
According to the "Word Count" feature in my Microsoft Word for
Windows software, this brief contains 8,033 words up to and including the
signature lines that follow the brief's conclusion.
I declare under penalty of perjury that this Certificate of Compliance
is true and correct and that this declaration was executed on November 9,
2006.
PAUL V. GALLEGOS
District Attorney
Humboldt County
By:
PAUL V. GALLEGOS
District Attorney
Attorneys for Appellant and Plaintiff
THE PEOPLE OF THE STATE OF
CALIFORNIA
APPELLENT’S OPENING BRIEF
CASE NO. A112028
1
PROOF OF SERVICE
I, Jennifer Strona, declare as follows:
I am a citizen of the United States, over the age of eighteen years
and not a party to the above-entitled action. I am employed at the District
Attorney’s Office of Humboldt County, 825 Fifth Street, Fourth Flooer,
Eureka, , CA 95501.
On November 9, 2006, I served the following document(s):
APPELLANT'S OPENING BRIEF
on the following persons at the locations specified:
Edgar B. Washburn, Esq.
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105-2482
Hon. Richard L. Freeborn
Humboldt County Superior Court
Eureka, CA 95501
(1 copy) Hand Delivery
John A. Behnke, Esq.
CARTER, BEHNKE, OGLESBY &
BACIK
169 Mason Street, Suite 300
Ukiah, CA 95482
California Supreme Court
350 McAllister Street
San Francisco, CA 94102
(5 copies)
in the manner indicated below:
BY UNITED STATES MAIL: Following ordinary business practices, I sealed
true and correct copies of the above documents in addressed envelope(s) and placed them
at my workplace for collection and mailing with the United States Postal Service. I am
readily familiar with the practices of the San Francisco City Attorney's Office for
collecting and processing mail. In the ordinary course of business, the sealed envelope(s)
that I placed for collection would be deposited, postage prepaid, with the United States
Postal Service that same day.
BY PERSONAL SERVICE: I sealed true and correct copies of the above
documents in addressed envelope(s) and caused such envelope(s) to be delivered by hand
at the above locations by a professional messenger service. A declaration from the
messenger who made the delivery is attached or will be filed separately
with the court.
I declare under penalty of perjury pursuant to the laws of the State of
California that the foregoing is true and correct.
Executed November 9, 2006, at San Francisco, California.
Jennifer Strona
CASE NO. A112028
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Appellant and Plaintiff,
vs.
PACIFIC LUMBER COMPANY, ET
AL,
Respondent and Defendant.
Case No. A112028
(Humboldt Superior Court
No. DR030070)
APPELLANT'S OPENING BRIEF
The Honorable Richard L. Freeborn
PAUL V. GALLEGOS, State Bar #161408
District Attorney
Humboldt County
825 Fifth Street
Fourth Floor
Eureka, California 95501
Telephone: (707) 445-7411
Facsimile: (707) 445-7416
E-Mail: pgallegos@co.humboldt.ca.us
Attorneys for Appellant and Plaintiff
THE PEOPLE OF THE STATE OF
CALIFORNIA
APPELLANT’S OPENING BRIEF
CASE NO. A112028
i
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
There are no interested entities or persons to list in this Certificate
per California Rules of Court, Rule 14.5(d)(3).
Interested entities or persons are listed below:
Name of Interested Entity or Person Nature of Interest
1.
2.
3.
4.
Please attach additional sheets with person or entity information if
necessary.
Dated: November 8, 2006
PAUL V. GALLEGOS
District Attorney,
Humboldt County
By:
PAUL V. GALLEGOS
Printed Name: P aul V. Gallegos
District Attorney
Address: 8 25 Fifth Street
4th Floor
Eureka, California 95501
State Bar # S tate Bar No. 161408
Party Represented: T he People of the State of California
APPELLANT’S OPENING BRIEF
CASE NO. A112028
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS................... i
TABLE OF AUTHORITIES ....................................................................... iii
INTRODUCTION ........................................................................................ 1
STATEMENT OF FACTS AND CASE ...................................................... 1
STANDARD OF REVIEW.......................................................................... 3
SUMMARY OF ARGUMENT .................................................................... 3
LEGAL DISCUSSION................................................................................. 4
I. CIVIL CODE SECTION 47(b) DOES NOT PRECLUDE
THE PEOPLE'S UCL LAWSUIT BECAUSE THE PEOPLE
WERE NOT A PARTY TO THE CEQA PROCESS........................ 4
II. THE NOERR-PENNINGTON DOCTRINE IS NOT A
DEFENSE IN THE PEOPLE'S UCL LAWSUIT AGAINST
PL. ...................................................................................................... 5
A. THE NOERR-PENNINGTON DOCTRINE
PROTECTS LOBBYING, NOT MATERIAL
MISREPRESENTATIONS IN AN
ADJUDICATORY PROCEEDING
B. GIVING FALSE INFORMATION TO AN
ADJUDICATIVE ADMINISTRATIVE AGENCY
FOR THE PURPOSE OF DECEIVING THEM IN
THEIR ADJUDICATIVE ROLE IS NOT
LOBBYING, IT IS FRAUD
C. NOERR-PENNINGTON IS NOT A DEFENSE
WHEN THE UCL LAWSUIT IS BROUGHT BY
THE GOVERNMENT ACTING TO ENFORCE
ITS LAWS
III. THE ALLEGATIONS IN THE PEOPLE'S COMPLAINT
WERE THAT PL'S MATERIAL MISREPRESENTATIONS
UNDERMINDED THE ENTIRE CEQA PROCEEDINGS
AND THE COURT HAD NO LEGAL AUTHORITY TO
DECIDE OTHERWISE................................................................... 17
IV. THE UCL APPLIES TO BOTH SINGLE AND MULTIPLE
TRANSACTIONS. .......................................................................... 26
CONCLUSION........................................................................................... 28
CERTIFICATE OF COMPLIANCE.......................................................... 29
APPELLANT’S OPENING BRIEF
CASE NO. A112028
iii
TABLE OF AUTHORITIES
State Cases
American Products Co., Inc. v. Law Offices of Geller, Stewart, Foley, LLP
(2005) 134 Cal.App.4th 1332.................................................................... 4
Committee on Children's Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197............................................................................ 3,17
Hewlett v. Squaw Valley Ski Corp.
(1997) 54 Cal.App.4th 499...................................................................... 27
Kasky v. Nike.
(2002) 27 Cal.4th 939................................................................................ 8
Kashiam v. Harriman
(2002) 98 Cal.App.4th 892........................................................................ 4
People v. Pacific Land Research Co.
(1977) 20 Cal.3d 10................................................................................ 15
Rubin v. Green
(1993) 4 Cal.4th 1187................................................................................. 4
Silberg v. Anderson.
(1990) 50 Cal.3d 205................................................................................. 3
Stopp Youth Addiction, Inc. v. Lucky Stores, Inc.
(1998) 17 Cal.4th 553.............................................................................. 27
United Farm Workers of America v. Dutra Farms
(2000) 83 Cal.App.4th 1146.................................................................... 27
Federal Cases
Amarel v. Connell
(9th Cir. 1996) 102 F.Supp.3d 1494 ......................................................... 6
California Motor Transp. Co. v. Trucking Unlimited,
(1972) 404 U.S. 508 ................................................................... 6,11,16,17
Columbia Steel Casting v. Portland General Electric Co.
(9th Cir. 1996) 111 F.3d 1427................................................................... 8
Eastern RR Presidents Conference v. Noerr Motor Freight Inc.
(1961) 365 U.S. 127 .................................................................................. 5
APPELLANT’S OPENING BRIEF
CASE NO. A112028
iv
Federal Prescription Serv., Inc. v. American Pharmaceutical Ass'n
(D.C. Cir. 1987) 663 F.2d 253 ................................................................ 12
George R. Whitten, Jr. v. Paddock Pool Builders, Inc.
(1st Cir. 1996) 424 F.2d 25 ............................................................ 9,10,11
Kottle v. Northwest kidney Centers
(9th Cir. 1998) 146 F.3d 1056................................................................ 12
Liberty Lake Investments, Inc. v. Magnuson
(9th Cir. 1993) 12 F.3d 155................................................................ 12,13
Nobelpharma AB v. Implant Innovations, Inc..
(Fed. Cir. 1998) 141 F.3d 1059............................................................... 12
United Mine Workers v. Pennington
(1965) 381 U.S. 657 .................................................................................. 5
Whelan v. Adell
(D.C. Cir 1995) 48 F.3d 1247 ................................................................. 12
Woods Exploration & Producing Co., Inc. v. Aluminum Co. of America
(5th Cir. 1971) 438 F.2d 1286................................................................... 7
State Statutes & Codes
Business and Professions Code
§ 17200......................................................................................... 1,4,26,27
§ 17204.................................................................................................... 15
Civil Code
§ 47..................................................................................................... 1, 2,4
Proposition 64 …………………………………………………………… 15
APPELLENT’S OPENING BRIEF
CASE NO. A112028
1
INTRODUCTION
In this case, the trial court ruled that the People’s Business &
Professions Code § 17200 (“UCL”) lawsuit for fraud against Pacific
Lumber Company, et al. (“PL”), seeking civil penalties and restitution, was
immune from prosecution under Civil Code § 47’s litigation privilege and
the “Noerr-Pennington doctrine.” The trial court also determined, contrary
to the allegations in the complaint, that PL’s misrepresentations did not
undermine the administrative agency’s decision; and, contrary to law, that
the UCL is not applicable to single transactions and the complaint alleges a
single transaction.
None of these conclusions are correct. Specifically: (i) the litigation
privilege does not apply to the People’s UCL lawsuit because the People
were not a party to the underlying CEQA process; (ii) the Noerr-
Pennington doctrine is not applicable to this case because PL wasn’t
lobbying government - they were applying for a timber harvest permit; and
the lawsuit is a law enforcement action of the People of the State of
California, not an individual or a non-government entity; (iii) the
allegations in the complaint that PL’s material misrepresentations
undermined the entire proceeding is a factual issue that cannot be resolved
by demurrer; and (iv) by law, the UCL applies to a single act of fraud.
STATEMENT OF FACTS AND CASE
The People bring this Business & Professions Code § 17200
(“UCL”) lawsuit against Pacific Lumber Company, et al. (“PL”), seeking
civil penalties and restitution. The People allege that PL intentionally
misrepresented crucial facts in an adjudicative administrative procedure
governed by the California Environmental Quality Act (“CEQA”), resulting
APPELLENT’S OPENING BRIEF
CASE NO. A112028
2
in the circumvention of a critical step in the CEQA process: recirculation of
the Environmental Impact Report (“EIR”) for public comment. As a result,
PL was permitted to log more timber than it otherwise would have been
allowed. The increased harvest rate resulted in increased landslides, water
pollution, sedimentation, and impairment of northern California watersheds
and fisheries that threaten the health and safety of residents and public
infrastructure. PL benefited and continues to benefit from its deceit.
PL has thrice demurred to People’s successive complaints, and the
matter is now at issue following the trial court’s order sustaining PL’s
demurrer to the Second Amended Complaint. [CT 614-615.]
The basis for the trial court’s ruling are that: (1) Civil Code § 47’s
litigation privilege bars this lawsuit; [CT 595-602]; (2) the “Noerr-
Pennington doctrine” protecting the rights to lobby or petition the
government bars this lawsuit; [CT 605, 610]; (3) PL’s misrepresentations
did not undermine the agency decision; [CT 609-611]; and (4) the UCL is
directed at ongoing wrongful conduct, not single transactions, and the
complaint alleges a single transaction. [CT 611-612.]
The trial court’s conclusions are incorrect. First, the litigation
privilege does not apply to the People’s UCL lawsuit because the People
were not a party to the underlying CEQA process. Second, the Noerr-
Pennington doctrine is not a defense to the People’s UCL lawsuit because
(i) PL’s conduct amounted to fraud against the People of the State of
California - not lobbying; and (ii) the lawsuit is a law enforcement action
designed to protect the public. Third, the court’s failure to accept the
allegations in the complaint, to wit: PL’s material misrepresentations
undermined the entire proceeding, as true when ruling on the demurrer as is
APPELLENT’S OPENING BRIEF
CASE NO. A112028
3
required by law was an abuse of the court’s authority. Fourth, it is well
settled law that UCL applies to a single act of fraud.
STANDARD OF REVIEW
A demurrer tests only the legal sufficiency of a pleading. Committee
on Children’s Television, Inc. v. General Foods Corporation (1983) 35
Cal.3d 197, 213-214. In reviewing a judgment of dismissal pursuant to a
demurrer, the Court must assume the truth of all properly pleaded material
allegations of the complaint. Silberg v. Anderson (1990) 50 Cal.3d 205,
210.
SUMMARY OF ARGUMENT
The trial court’s ruling is contrary to the law, public policy and the
facts alleged in the complaint. Specifically: (i) the People were not a party
to the underlying CEQA process so the litigation privilege does not apply to
this lawsuit; (ii) the People’s UCL lawsuit against PL is a law enforcement
action of the People of the State of California and PL wasn’t lobbying
government - they were applying for a timber harvest permit, so the Noerr-
Pennington doctrine does not apply to this lawsuit either; (iii) the
allegations in the complaint were that PL’s material misrepresentations
undermined the entire proceeding and the court had no authority to decide
otherwise; and (iv) the UCL applies to a single act of fraud.
Therefore, this Court should overrule the trial court’s order in its
entirety.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
4
LEGAL DISCUSSION
I.
A. CIVIL CODE SECTION 47(b) DOES NOT PRECLUDE
THE PEOPLE’S UCL LAWSUIT BECAUSE THE
PEOPLE WERE NOT A PARTY TO THE CEQA
PROCESS.
The trial court ruled that the People’s Business and Professions
Code § 17200 lawsuit against PL is barred by Civil Code § 47(b)’s
litigation privilege. The People’s lawsuit alleges that PL committed fraud
in an adjudicatory administrative CEQA process. The People were not a
party to that action. Therefore, PL’s fraud is not protected by the litigation
privilege.
Specifically, in Rubin v. Green (1993) 4 Cal.4th 1187, the Supreme
Court ruled that the litigation privilege does not preclude lawsuits under
Business and Professions Code § 17200 by non-party litigants. This ruling
was followed in Kashian v. Harriman (2002) 98 Cal.App.4th 892, (Where
fraud occurred in litigation to which the plaintiff was not a party, the
plaintiff could sue for redress from fraud and the litigation privilege would
not protect the defendant); and in American Products Co., Inc. v. Law
Offices of Geller, Stewart and Foley, LLP (2005) 134 Cal.App.4th 1332,
(The litigation privilege is not a defense in an unfair competition action if
the plaintiff was not a party to the earlier litigation in which the allegedly
privileged conduct occurred.)
APPELLENT’S OPENING BRIEF
CASE NO. A112028
5
II.
THE NOERR-PENNINGTON DOCTRINE IS NOT A DEFENSE IN
THE PEOPLE’S UCL LAWSUIT AGAINST PL.
A.
THE NOERR-PENNINGTON DOCTRINE PROTECTS LOBBYING,
NOT MATERIAL MISREPRESENTATIONS IN AN
ADJUDICATORY PROCEEDING.
For the Petition Clause of the First Amendment to the United States
Constitution, (U.S. Const. amend. I, cl. 6.) to be a meaningful protection of
the democratic process, citizens must be immune from some forms of
liability for their efforts to persuade government officials to adopt policy or
perform their functions in a certain way. Accordingly, in Eastern RR
Presidents Conference v. Noerr Motor Freight, Inc., (1961) 365 U.S. 127,
the Court rejected antitrust liability stemming from an aggressive lobbying
campaign by railroads to persuade states to adopt legislation that would
severely limit competition from truckers. The Court explained, "in
a representative democracy such as this . . . the whole concept of
representation depends upon the ability of the people to make their wishes
known to their representatives," Id. at 137, therefore, the Sherman Act does
not apply to the railroads' advocacy of legislative action, i.e., lobbying,
even if there is an anticompetitive intent. Id. at 138.
The Noerr-Pennington doctrine, which evolved out of the Noerr
decision and its progeny, has been found to apply to activities aimed at the
executive and judicial branches of government and to administrative
agencies. United Mine Workers v. Pennington, (1965) 381 U.S. 657, 669-
APPELLENT’S OPENING BRIEF
CASE NO. A112028
6
70, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965) (executive); California Motor
Transp. Co. v. Trucking Unlimited, (1972) 404 U.S. 508, 510, 30 L. Ed. 2d
642, 92 S. Ct. 609 (judicial and administrative agencies). The Court
explained that " the right to petition extends to all departments of the
Government," and therefore, "the same philosophy governs the approach of
citizens or groups of them to administrative agencies (which are both
creatures of the legislature, and arms of the executive) and to courts, the
third branch of Government." California Motor Transp., 404 U.S. at 612-
13. Noerr-Pennington has also been applied to both state and federal
antitrust claims that allege anticompetitive activity in the form of lobbying
before any branch of either federal or state government. Amarel v. Connell,
(9th Cir. 1996) 102 F.3d 1494, 1524.
B.
GIVING FALSE INFORMATION TO AN ADJUDICATIVE
ADMINISTRATIVE AGENCY FOR THE PURPOSE OF
DECEIVING THEM IN THEIR ADJUDICATIVE ROLE IS NOT
LOBBYING, IT IS FRAUD.
As indicated above, the Noerr-Pennington doctrine protects
lobbying. However, the process of providing information to an
administrative agency charged with a regulatory fact-finding procedure,
much like obtaining a building permit or other permits from administrative
agencies, is not lobbying.
Specifically, PL was not seeking a change in existing rules of law or
policy. Rather, PL sought a decision that would allow them to harvest
enough timber to provide them a certain flow of income. Because they
thought accurate information about the environmental impact of their
APPELLENT’S OPENING BRIEF
CASE NO. A112028
7
desired harvest rate would cause the administrative agency charged with
issuing a harvest rate permit to deny their requested harvest rate, they gave
the administrative agency false information about the environmental impact
of that desired harvest. The above conduct is fraud, not lobbying.
As stated by the Federal Court in Woods Exploration & Producing
Co., Inc. v. Aluminum Co. of America (5th Cir. 1971) 438 F.2d 1286:
Basic to Noerr is a belief that regulation of competition by the
political process is legitimate and not proscribed by the Sherman
Act, an enactment which is itself a political decision. For the
political process to be effective there must be freedom of access,
regardless of motive, to ensure the ‘right of the people to inform
their representatives in government of their desires with respect to
the passage or enforcement of laws.’ [citations omitted.] Where
these political considerations are absent the Noerr doctrine is
inapplicable. [citations omitted.] The policies of the Sherman Act
should not be sacrificed simply because defendants employ
governmental processes to accomplish anti-competitive purposes.
Otherwise, with governmental activities abounding about us,
government could engineer many to antitrust havens. We think that
the doctrine should not be extended unless the factors upon which
Noerr rested are present and require the same result. In Trucking
Unlimited v. California Motor Transport Co., [citations omitted], the
Ninth Circuit refused to immunize under Noerr a scheme whereby
trucking companies conspired to oppose before state and federal
regulatory commissions all applications by competitors for the
issuance, transfer, or registration of operating rights. Characterizing
the licensing procedure as adjudicative, the court felt that the
defendants were not seeking to influence a policymaking function;
rather they were attempting to undermine a well-defined policy with
regard to licensing operators by blocking and discouraging access to
the governmental agencies. Similarly, in the instant case there has
been no attempt by defendants through the filing of false
nominations to influence the policies of the Railroad Commission.
The germination of the allowable formula was political in the Noerr
sense, and thus participation in those rule-making proceedings would
have been protected. But the formula's subsequent implementation
is apolitical. Once the rule is promulgated, defendants may not
APPELLENT’S OPENING BRIEF
CASE NO. A112028
8
plead immunity in their attempt to undermine its efficacy for anticompetitive
purposes.
Id. at 1296-1297
The Woods case, supra, is interesting in its factual resemblance to
the case at bar. In Woods the defendant, a natural gas producer, was not
seeking to influence a policymaking function, rather they misrepresented
the volume of gas they expected to market from their wells to the governing
state agency to reduce the production allowables. In the Peoples case
against PL, PL was not trying to persuade the administrative agency
charged with fact-finding and issuing a harvest permit to change the rules
associated with the fact-finding process or the issuance of a harvest permit.
Rather, PL was trying to obtain a permit to harvest an amount of timber that
would result in a desired profit. Because PL thought that accurate
information about the environmental impact of their desired harvest rate
would result in their not being able to obtain a permit that would allow
them to harvest timber at a rate that would give them their desired profit,
they gave the agency false information about the anticipated environmental
impact of their desired harvest rate.
In Woods, like PL in this case, the defendant sought to protect their
misrepresentations by invoking Noerr-Pennington doctrine. However, in
Woods, the Court rejected that attempt distinguishing attempts to invoke
policy-making powers of agencies and attempts to misrepresent the facts to
get a favorable permit. See also: Kasky v. Nike, (2002) 27 Cal.4th 939, 969
(“[W] hen a corporation, to maintain and increase its sales and profits,
makes public statements defending labor practices and working conditions
at factories where its products are made, those public statements are
commercial speech that may be regulated to prevent consumer deception.”);
Columbia Steel Casting v. Portland General Electric Co. (9th Cir. 1996)
APPELLENT’S OPENING BRIEF
CASE NO. A112028
9
111 F. 3d 1427, 1446 ("Applying to an administrative agency for approval
of an anticompetitive contract is not lobbying within the meaning of the
Noerr-Pennington doctrine.").)
In George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc. (1st
Cir. 1970) 424 F.2d 25, the First Circuit discussed the difference, for
purposes of applying Noerr-Pennington doctrine between political
lobbying, which is protected, and self-serving attempts to market one’s
wares, which is not. In Whitten, for purposes of summary judgment, the
defendant manufacturer of swimming pool hardware admitted to “that it
had combined with dealers and others to effect the use of its specifications
in the public swimming pool industry, that its specifications were so drawn
that only it could comply, and that its purpose was to eliminate
competition.” Id. at 27. The defendant further admitted that such conduct
could violate the Sherman Anti-Trust Act, but claimed Noerr-Pennington
immunity. Id. The District Court granted summary judgment but the
Appeals Court reversed, pointing out that the defendant’s attempts to better
its market position was not political lobbying protected by Noerr
Pennington.
Analyzing Noerr, the Court said:
The key to this decision, in our opinion, is the Court's heavy
emphasis on the political nature of the railroad's activities and its
repeated reference to the ‘passage or enforcement of laws.’ The
entire thrust of Noerr is aimed at insuring uninhibited access to
government policy makers. A pluralistic society moves by many
motives. The hope, supported by history, is that permitting every
interest to be heard will produce a tolerable amalgam responsive to
the needs of a given time. But the efforts of an industry leader to
impose his product specifications by guile, falsity, and threats on a
harried architect hired by a local school board hardly rise to the
dignity of an effort to influence the passage or enforcement of laws.
By ‘enforcement of laws’ we understand some significant policy
APPELLENT’S OPENING BRIEF
CASE NO. A112028
10
determination in the application of a statute, not a technical decision
about the best kind of weld to use in a swimming pool gutter. Noerr
alone, then, does not support Paddock's position.
The Court further said:
The state legislatures, by enacting statutes requiring public
bidding, have decreed that government purchases will be made
according to strictly economic criteria. Paddock [defendant] is free
to seek legislative change in this basic policy, but until such change
is secured, Paddock's dealings with officials who administer the bid
statutes should be subject to the same limitations as its dealings with
private consumers. Indeed, to hold otherwise might impair the
effectiveness of competitive bidding. [Citation omitted.] We
conclude, therefore, that the immunity for efforts to influence public
officials in the enforcement of laws does not extend to efforts to sell
products to public officials acting under competitive bidding
statutes.
This conclusion does not, in our view, encroach on the
freedom of speech and right to petition protected by the First
Amendment. The First Amendment does not provide the same
degree of protection to purely commercial activity that it does to
attempts at political persuasion. [Citations omitted] Moreover, the
First Amendment does not prevent government from adopting
reasonable rules for regulating the conduct of those who seek its
favor. [Citations omitted.] Finally, Paddock's right to tout its wares
to government agencies, unlike the right to seek legislation involved
in Noerr, is purely a creature of statute and must be exercised within
the confines of bidding procedures designed to insure the maximum
possible competition for the government's expenditures. In the light
of these considerations, we see no constitutional objection to
requiring that Paddock observe the same limitations in dealing with
the government as it would in dealing with private consumers.”
Whitten 424 F. 2d at 33-34.
The court further observed that Noerr protects only attempts to
influence political rule making. “Noerr stressed the importance of free
access to public officials vested with significant policy-making discretion.
We doubt whether the Court, without expressing additional rationale,
APPELLENT’S OPENING BRIEF
CASE NO. A112028
11
would have extended the Noerr umbrella to public officials engaged in
purely commercial dealings when the case turned on other issues.” (Id. at
33.)
In this case, the CEQA process was an adjudicatory administrative
process where the administrative agency was charged with gathering
information for making a cost-benefit analysis of harvesting timber and for
determining what level of mitigation was necessary to minimize the
negative environmental impact of that logging. PL was not claiming that
such cost-benefit analysis should not be done or that there should be some
change in the CEQA process. Rather, they were using the CEQA process
to provide false information about the impact of their desired logging so
they could harvest more timber than they otherwise would have been able
to and would have to do less mitigation of the environmental harm caused
by that logging under the pretense of complying with the law. In essence,
PL deprived the agency of necessary information to do appropriate costbenefit
analysis as they were obligated to do on behalf of the People of the
State of California.
However broad the First Amendment right to petition may be, it
cannot be stretched to cover petitions based on known falsehoods.
“Misrepresentations, condoned in the political arena, are not immunized
when used in the adjudicatory process.” California Motor Transport v.
Trucking Unlimited (1972) 404 U.S. 508, 513. “Attempts to influence
APPELLENT’S OPENING BRIEF
CASE NO. A112028
12
governmental action through overtly corrupt conduct, such as bribes (in any
context) and misrepresentations (in the adjudicatory process), are not
normal and legitimate exercises of the right to petition, and activities of this
sort have been held beyond the protection of Noerr.” Federal Prescription
Serv., Inc. v. American Pharmaceutical Ass’n. (D.C. Cir. 1981) 663 F.2d
253, 263. “We see no reason to believe that the right to petition includes a
right to file deliberately false complaints.” Whelan v. Abell (D.C. Cir.
1995) 48 F.3d 1247, 1255. “Neither Noerr-Pennington nor the First
Amendment protects the conduct plaintiffs have alleged--namely, knowing
misrepresentations to state securities administrators and a federal court.”
Whelan v. Abell (D.C. Cir. 1995) 48 F.3d 1247, 1249. The Noerr-
Pennington doctrine does not provide immunity for a party where there is
“proof that a party’s knowing fraud upon, or its intentional
misrepresentations to, the court deprive the [prior] litigation of its
legitimacy. Liberty Lake Investments, Inc., v. Magnuson, (9th Cir. 1993) 12
F.3d 155, 159. “A fraudulent omission can be just as reprehensible as a
fraudulent misrepresentation.” Nobelpharma AB v. Implant Innovations,
Inc., (Fed. Cir. 1998) 141 F.3d 1059, (No Noerr-Pennington doctrine
immunity for party that fraudulently obtained patent.)
The trial court’s reliance on Kottle v. Northwest Kidney Centers (9th
Cir. 1998) 146 F.3d 1056, in rendering its decision is also misplaced.
Specifically, Kottle dealt with an entirely different situation. In Kottle the
APPELLENT’S OPENING BRIEF
CASE NO. A112028
13
entity providing false information to the adjudicative administrative agency
was not a party to the adjudicative process. Rather, they were the
established dialysis clinic that wanted to prevent Doctor Kottle from getting
a permit to open another facility so he would not take away their market
domination. The entrenched clinic lied about factual data relevant to the
need for and effects of the proposed facility. The agency relied on that
information in their decision to not issue the permit and Doctor Kottle sued
the entrenched clinic. The holding in Kottle would have been entirely
different if Doctor Kottle had providing false information to obtain his
permit as PL did in the Peoples case. Specifically, he would be facing
either a criminal prosecution or a UCL case brought against him by the
local prosecutor.
Finally, the Noerr-Pennington doctrine is not a defense if a party's
knowing fraud upon, or its intentional misrepresentations to, the judicial
proceeding or adjudicative administrative proceeding that the party is
before deprives the proceeding of its legitimacy rendering it a “sham”
proceeding. Liberty Lake Inv., Inc. v. Magnuson, (9th Cir. 1993) 12 F.3d
155, 158. The People’s complaint alleged that PL’s knowing
misrepresentations to the administrative agency charged with regulating
their timber harvesting deprived the adjudicatory process of its legitimacy
by preventing a meaningful initial EIR review and then mandatory
recirculation of the EIR because of the significance of the new information
APPELLENT’S OPENING BRIEF
CASE NO. A112028
14
which showed a concordant, rather than a contradictory, relationship,
between the Bear and Jordan Reviews. This rendered the proceeding a
“sham” and, once again, the Noerr-Pennington doctrine is not a defense to
the People’s UCL lawsuit against PL.
C.
NOERR-PENNINGTON IS NOT A DEFENSE WHEN THE UCL
LAWSUIT IS BROUGHT BY THE GOVERNMENT ACTING TO
ENFORCE ITS LAWS.
The most interesting and most important issue raised by the trial
court’s ruling is whether the Noerr-Pennington doctrine precludes a civil
law enforcement action brought by a District Attorney to protect the People
of the State of California from fraud committed upon them. This is an issue
of first impression that has the potential for profound social and legal
significance.
The People assert that the Noerr-Pennington doctrine does not
preclude UCL lawsuits brought by the Attorney General, district attorneys,
county counsels and city attorneys under their public protection authority.
Further, the People challenge PL to provide a case that holds that it does
preclude either a criminal or civil law enforcement action brought by a
District Attorney against a person or persons for knowing material
misrepresentations to an administrative agency engaged in an adjudicative
administrative proceeding involving the person or persons providing that
false information.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
15
A civil action brought by a governmental entity under UCL “is
fundamentally a law enforcement action designed to protect the public.”
People v. Pacific Land Research Co., (1977) 141 Cal.3d. 10, 17. The
Supreme Court’s finding in People v. Pacific Land Research was reiterated
in the most recent amendment to 17204, made by the passage of
Proposition 64 in 2004 by the California electorate. The initiative’s finding
and declaration of purpose provided that “[I]t is the intent of California
voters in enacting this act that only the California Attorney General and
local public officials be authorized to file and prosecute actions on behalf
of the general public.” (Initiative Measure (Prop. 64) § 1(f), emphasis
added.) The initiative further declared that “[I]t is the intent of California
voters in enacting this act that the Attorney General, district attorneys,
county counsels, and city attorneys maintain their public protection
authority and capability under the unfair competition laws.” Id. at § 1(g),
emphasis added. This stated purpose is in accord with the long history of
the UCL. (See, e.g,, People v. Centr-O-Mart (1950) 214 P.2d 378, 380
(The Attorney General could pursue actions under the predecessor statute to
enforce the State’s interest in public welfare.))
The People’s lawsuit against PL is legislatively authorized to protect
the public from fraudulent and harmful business practices. It is a legitimate
assertion of the government’s police or regulatory power and one of the
methods a District Attorney has to fulfill the obligation of enforcing
APPELLENT’S OPENING BRIEF
CASE NO. A112028
16
California laws and regulations that affect the health, welfare and safety of
the People of the State of California. Therefore, providing PL immunity
from the People’s lawsuit against them for fraud under the circumstances in
this case is absurd. Such a ruling not only encourages misrepresentation
and deceit in every situation where governmental agencies are tasked with
regulating activities - it rewards it. If this logic is applied to building
permits, air emissions regulations, water quality regulations, and every
other activity that government regulates for the purpose of protecting the
public and the court will have completely eviscerated government’s ability
to protect its citizenry. This outcome simply cannot be the law if the law is
just.
Each of the cases PL cited in support of their position that the Noerr-
Pennington doctrine precluded the People’s lawsuit was brought by a
private party against a competitor. In each instance, one party wished to
show that a business competitor had transgressed the permissible limits on
trying to persuade a governmental agency to grant favors or advantages.
The difference between a lawsuit between competitors, and one brought by
the People as part of their police and regulatory power is profound.
Worth noting is that the court in California Motor Transport v.
Trucking Unlimited (1972) 404 U.S. 508, finding the Noerr-Pennington
doctrine was inapplicable in an administrative context, observed that it has
never been thought unconstitutional to make a course of conduct illegal
APPELLENT’S OPENING BRIEF
CASE NO. A112028
17
simply because the conduct was wholly or partly carried out by means of
language. California Motor Transport v. Trucking Unlimited, supra, 404
U.S. at 613 “Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.” Id.
Applied to the instant case, turning the right to petition government
into a right to lie in an adjudicative administrative hearing makes it
impossible for a regulating agency to fulfill its responsibility of regulating.
In the context of logging on steep, unstable slopes in watersheds containing
people, their homes and community infrastructures, such an expansion
leaves those people and their communities wholly unprotected and without
any ability to remedy harms inflicted upon them by unconstrained logging.
III.
THE ALLEGATIONS IN THE PEOPLE’S COMPLAINT WERE
THAT PL’S MATERIAL MISREPRESENTATIONS
UNDERMINDED THE ENTIRE CEQA PROCEEDINGS AND THE
COURT HAD NO LEGAL AUTHORITY TO DECIDE
OTHERWISE.
A demurrer tests only the legal sufficiency of a pleading. Committee
on Children’s Television, Inc. v. General Foods Corporation (1983) 35
Cal.3d 197, 213-214.)
The trial court states that the misrepresentation could have no effect
on the proceeding because the allegedly false report and the corrected
report were both filed after the November 16, 1998 cutoff date and
APPELLENT’S OPENING BRIEF
CASE NO. A112028
18
therefore CDF was not obliged to consider them. (TC order p 21.) Further
the trial court states that we have not explained how CDF initially arrived at
a lower allowable timber harvest figure than PL was later able to obtain,
even without the corrected report. (TC order p 22.) In the trial court’s view
of the allegations, because CDF originally adopted a long-term sustained
yield plan (LTSY) known as SYP alternative 25a, and only changed that
plan pursuant to PL’s later persuasive efforts, we have not shown that the
cause of the increased allowance was the fraud. (TC order p 20.)
This oversimplified summary of our allegations is both incorrect and
speculative. Specifically, the People alleged that the Jordan creek data –
which PL falsified and then hid from regulators and the public so as to
conceal its importance – critically undermined the validity of studies made
in other watersheds about the effects of logging on steep slopes, and the
effectiveness of the HCP mitigations in reducing hazardous logging. Had
the Jordan Creek data been available to CDF early in the process, as it
should have been, PL would have had no credible defense against the
constraints necessarily imposed by the conclusions of the Bear Creek
Report, and CDF would have had no credible rationale for even the initial
rate of logging in 25a, which was lower than PL finally obtained. The
People argued that even 25a was unsupportable, since 25a presumed and
relied upon the accuracy of False Jordan report to overcome the constraints
of the Bear Creek conclusions.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
19
The People maintain that the Corrected Jordan, insofar as it
corroborated the findings in the Bear Creek report, would have required
CDF to approve a rate of logging lower, not higher than 25a. Therefore, PL
could never have persuaded the agency to allow as much logging as it did.
The trial court also impugned the allegations because the Water
Quality agency required the Bear and Jordan reviews, as though compelled
evidence, irrespective of its origin, were not to be considered in this
process. Such is not the case; substantive evidence in a quasi-judicial
administrative process such as this is considered because it bears on
adjudicatory facts. In any event, the surveys were in fact ordered by Water
Quality in conjunction with CDF and other state regulatory agencies,
including DFG, a signatory to the HWA, a fact misunderstood by Judge
Freeborn because he prematurely and improperly considered it at the
demurrer stage without the benefit of a fact-finding process.
Judge Freeborn’s similar reliance on dates of submission is marred
by his confusion flowing from the inherently inadequate factual airing in a
demurrer.
The People alleged the importance of the Jordan Creek data and
expect to present witnesses who will testify that the outcome of the
proceeding would have been entirely different had the fraud not occurred.
The trial court went well beyond its role in reviewing a demurrer when it
APPELLENT’S OPENING BRIEF
CASE NO. A112028
20
decided that the Jordan creek data, because of the timing of events, could
have had no effect on the outcome.
Had there been only the Correct Jordan survey demonstrating
concordance between Bear and Jordan with respect to the predicted
incidence of landslides pursuant to PL’s proposed HCP/SYP, even the
logging rate approved in 25a would have been untenable, since 25a was
approved reliant on False Jordan.
As it played out, the entire proceeding was undermined and made
nugatory by this fraud because the fact of False Jordan followed by
Corrected Jordan made recirculation of the EIR for further review by the
public and the agencies, mandatory, had Correct Jordan been submitted
properly. Significant new information requires recirculation under CEQA.
Correct Jordan is obviously significant in this context, because it affirmed
the acknowledged significance of Bear - that PL’s proposed HCP/SYP
would violate water law, and constitute a nuisance, both untenable and
unlawful outcomes.
We recapitulate some of the crucial facts from our allegations.
When Dr. Leslie Reid reviewed the PL Sediment Source Survey
(SSI) for Bear Creek in May, 1998, at the request of the EPA and
NCRWQCB, she found a 9.6 fold increase in landsliding rates from
hillslopes selectively logged under modern forest practice rules, as
compared to partially recovered lands logged prior to the Forest Practice
APPELLENT’S OPENING BRIEF
CASE NO. A112028
21
Rules. At the request of the NCRWQCB, Dr. Reid prepared a calculation
of a cutting rate for the Bear Creek watershed that would result in
attainment of Basin Plan objectives, including recovery of the watershed.
Assuming HCP/SYP protections to be entirely effective and sufficient to
avoid any increase in landslides over the naturally occurring background
rate, and disregarding the differences between old growth forest stands and
logged lands un-reentered for >15 years, Dr. Reid concluded that 1.5% of
the watershed could be logged annually. This rate did not take into account
logging-related hydrologic alterations, which would further limit the rate of
harvest significantly. She emphasized that the logging would have to be
“dispersed through time in any given watershed.”
Dr. Reid’s final observations in her review of the SSI for Bear Creek
sounded a death knell for PL’s desired harvest rates, dependent as they
were on maximizing the allowable harvest of mass wasting areas of
concern: “It should be noted that soils and bedrock similar to those of Bear
Creek watershed are also found through much of the North Fork Mattole
watershed and neighboring watersheds along the west valley wall of the
Eel; similar soil types are found in parts of the Freshwater Creek and Elk
River watersheds. Information and conclusions drawn from the Bear creek
watershed are thus potentially relevant through a large area.”
Rather than conduct the SSI of the neighboring (to Bear) small
watershed of Jordan Creek as scheduled, PL/PWA evaluated NFER instead,
APPELLENT’S OPENING BRIEF
CASE NO. A112028
22
and released the NFER SSI. It was reviewed by Dr. Reid and Frank
Reichmuth of NCRWQCB. Internal inconsistencies in data prevented a
final review, but a 13.1-13.6 fold increase in mass wasting from harvesting
under modern Forest Practice Rules (FPRs) was found, similar to the Bear
Creek SSI. “As it stands, it does not appear that the [mass wasting
avoidance] strategy will be capable of avoiding the kinds of failures
documented in the Bear Creek report. The strategy depends on site-level
inspections by a geologist.
The problem for PL was that the concepts and approach from Dr.
Reid’s Bear Creek Review and calculations would be generalized to other
watersheds. These findings were submitted as comments to the Draft
Environmental Impact Statement/DEIReport (DEIS/EIR) for the HCP/SYP,
and unless somehow discredited or otherwise neutralized, they would
undermine the basis for PL’s SYP harvest rate projections. In order to
attack the generalizations from Dr. Reid’s review, PL/PWA submitted a
“draft” Jordan Creek SSI demonstrating the opposite findings from that of
Bear Creek.
What happened next is best explained in an excerpt from Dr. Reid’s
review of a geologist’s report for a PL THP in the North Fork Mattole:
“The second new contribution to understanding of landslide distribution
came with the long-awaited release of the PWA report on landslide
distribution in Jordan Creek watershed (PWA 1999), located immediately
APPELLENT’S OPENING BRIEF
CASE NO. A112028
23
north of Bear Creek watershed. This event, however, was marked by
considerable confusion, because the actual contents of the report were
found to directly contradict the results that had been quoted earlier by PWA
(1998), Dr. D. Opalach (1998) of Pacific Lumber Company, and USFWS
and CDF (1999). Between 10 November 1998 and 29 January 1999, the
results were said to demonstrate that in Jordan Creek, most recent
landslides were associated with older logging, and that recently logged
slopes showed comparatively low rates of landslides. This “result” was the
primary piece of evidence used to assert that results of the Bear Creek
report could not be employed to inform management decisions in nearby
areas with similar geology, topography, land-use history, and climate: if a
neighboring watershed shows the opposite pattern as Bear Creek, then it is
clear that results cannot be generalized.
“When the report was finally released, however, it became clear that
the actual results of the study showed a pattern very similar to that
measured in Bear Creek: “In Jordan Creek, 60% of the landslides and 77%
of the landslide sediment delivery came from 50% of the watershed which
had been harvested within the last 15 years” (PWA 1999, p 27.) In other
words, rates of landslide sediment delivery from recently logged lands in
Jordan Creek watershed are 3.3 times higher than those from partially
recovered forest (calculated as the ratio between (0.77/0.50) and
(0.23/0.50).) Clearly, results in Jordan Creek support those from Bear
APPELLENT’S OPENING BRIEF
CASE NO. A112028
24
Creek, removing the argument that had been used to prevent Bear Creek
results from being used to inform management decisions on similar lands
nearby.” (Review of “Response to review comments of the Upper Allwardt
Creek THP” by Dr. Leslie Reid, 6/7/00.)
“Draft Jordan Creek SSI” was released for this 5000-acre watershed,
and no corrected version replaced it until it was too late.
The People further alleged that the entire proceeding was
undermined and made nugatory by this fraud because, had the corrected
Jordan Creek data been provided in a timely manner, the case would have
been recirculated to the public for further input and a meaningful review, in
light of the accurate data. The review that did take place was irrevocably
tainted by the false data. The corrected data was uniquely important in this
case because it undermined the key evidence upon which CDF relied to
refute the implications of the Bear creek conclusions that PL’s proposed
HCP/SYP inadequately mitigated the adverse environmental consequences
of PL’s proposed rate of logging.
The People alleged that the CDF would have recirculated the EIR
had it been aware of the false Jordan Creek data, because not only was that
data misleading as to the effect of logging in the Jordan Creek watershed,
but also it undermined the generality of conclusions about steep slope
logging in all the relevant watersheds. This false data was the weightiest
data showing no pernicious landslide effects from logging in steep terrain,
APPELLENT’S OPENING BRIEF
CASE NO. A112028
25
and therefore served to undermine the correctness of data from all other
watersheds. It was therefore supremely important data with the potential to
precipitate wholly different decisions as to circulation of the EIR and final
formulation of appropriate THP’s.
These are the facts the People plead; their truth cannot be
demonstrated without a trial. These allegations are clearly sufficient to
demonstrate how important that corrected data was to a valid procedure and
a correct result. For purposes of a demurrer, the allegations were enough to
demonstrate both extrinsic fraud and the sham nature of the tainted
proceeding.
Worth noting is that the trial court order is based on matters which
the court stated were beyond the record. The trial judge said: “While not
directly mentioned in the pleadings, one must consider the inception of the
CEQA process in this case. The Headwaters Agreement was not some
covert, dark of night, operation instigated solely by PALCO. It was a wellpublicized
coming together of a number of interested parties with a wide
divergence of interests in politics, business, ecology, flood control, revenue,
employment, and other factors. The process was open to one and all, and
the 80,000 page administrative record mentioned in EPIC, supra, attests to
the extent to which many contributed to the record. This complex and
extensive proceedings [sic] was not some fabrication of PALCO initiated as
APPELLENT’S OPENING BRIEF
CASE NO. A112028
26
a ‘sham’ to take advantage of others.” (Trial Court Order, pp. 18-19,
emphasis added).
The trial court erred in deciding this issue on the pleadings because
factual issues are unsuitable for demurrer resolution. We further submit
that the trial judge was not yet in a position to appreciate the significance of
PL’s misrepresentations, because we have not had an opportunity to build
the factual context in which these misrepresentations were made. That is
why the law wisely provides that facts are not to be tried on demurrer.
IV.
THE UCL APPLIES TO SINGLE OR TO MULTIPLE
TRANSACTIONS
The trial court stated that the UCL requires a “practice,” that is
ongoing wrongful conduct, envisioning more than a single transaction
citing Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499. [Trial
Court Order pp. 22-23] Hewlett has not been valid law since 1992 when
the Legislature amended § 17200 to provide that "unfair competition shall
mean and include any unlawful, unfair or fraudulent business act or
practice. . . ." Business and Professions Code § 17200. That change has
also been reflected in court decisions.
“In response to the California Supreme Court's 1988
ruling that a "business practice" under Business and
Professions Code section 17200 must encompass more than a
single transaction [see State of California ex rel. Van De
Kamp v. Texaco, Inc. (1988) 46 Cal. 3d 1147, 1169-1170],
APPELLENT’S OPENING BRIEF
CASE NO. A112028
27
the Legislature amended the statute in 1992 to provide that
‘unfair competition shall mean and include any unlawful,
unfair or fraudulent business act or practice. . . .’ (§ 17200,
italics added.) The California Supreme Court has interpreted
the 1992 amendment as overruling that part of Van De Kamp
that interpreted the statute to require more than a single ‘act.’
(Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17
Cal. 4th 553.) Accordingly, under the current version of the
statute, even a single act may create liability. (Klein v. Earth
Elements, Inc. (1997) 59 Cal. App. 4th 965, 968, fn. 3;
Podolsky v. First Healthcare Corp. (1996) 50 Cal. App. 4th
632, 653.)
“Although appellants cite Hewlett v. Squaw Valley Ski
Corp. (1997) 54 Cal. App. 4th 499, it is not controlling. This
is because Hewlett involved a suit filed in 1989, and the
Hewlett court therefore applied the statute as it read then,
rather than as amended in 1992. (Id. at pp. 514, 518.).”
(United Farm Workers of America v. Dutra Farms (2000) 83
Cal. App. 4th 1146, 1163-1164.)
The trial court is plainly wrong in dismissing this case on the ground
that the UCL requires more than a single transaction.
APPELLENT’S OPENING BRIEF
CASE NO. A112028
28
More importantly, the complaint at issue alleged a fraudulent course
of conduct. Specifically, it alleges that PL manufactured false data,
submitted it to the adjudicatory administrative agency, sent a correction of
the false data to the wrong individual in a manner that ensured it would not
be read in time to influence the decision, and now profits by its fraud by
logging in excess of safe and allowable limits, inflicting continuous harm
on the watersheds of Humboldt County.
CONCLUSION
The trial court’s ruling is contrary to the law, public policy and the
facts alleged in the complaint. Specifically: (i) the People were not a party
to the underlying CEQA process so the litigation privilege does not apply to
this lawsuit; (ii) the People’s UCL lawsuit against PL is a law enforcement
action of the People of the State of California and PL wasn’t lobbying
government - they were applying for a timber harvest permit, so the Noerr-
Pennington doctrine does not apply to this lawsuit either; (iii) the
allegations in the complaint were that PL’s material misrepresentations
undermined the entire proceeding and the court had no authority to decide
otherwise; and (iv) the UCL applies to single act and multiple acts of fraud.
Therefore, this Court should overrule the trial court’s order in its
entirety.
Dated: November 27, 2006 PAUL V. GALLEGOS
District Attorney,
Humboldt County
By:
PAUL V. GALLEGOS
Attorneys for Appellant and Plaintiff
THE PEOPLE OF THE STATE OF
CALIFORNIA
APPELLENT’S OPENING BRIEF
CASE NO. A112028
29
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using
proportionately double-spaced 13 point Times New Roman typeface.
According to the "Word Count" feature in my Microsoft Word for
Windows software, this brief contains 8,033 words up to and including the
signature lines that follow the brief's conclusion.
I declare under penalty of perjury that this Certificate of Compliance
is true and correct and that this declaration was executed on November 9,
2006.
PAUL V. GALLEGOS
District Attorney
Humboldt County
By:
PAUL V. GALLEGOS
District Attorney
Attorneys for Appellant and Plaintiff
THE PEOPLE OF THE STATE OF
CALIFORNIA
APPELLENT’S OPENING BRIEF
CASE NO. A112028
1
PROOF OF SERVICE
I, Jennifer Strona, declare as follows:
I am a citizen of the United States, over the age of eighteen years
and not a party to the above-entitled action. I am employed at the District
Attorney’s Office of Humboldt County, 825 Fifth Street, Fourth Flooer,
Eureka, , CA 95501.
On November 9, 2006, I served the following document(s):
APPELLANT'S OPENING BRIEF
on the following persons at the locations specified:
Edgar B. Washburn, Esq.
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105-2482
Hon. Richard L. Freeborn
Humboldt County Superior Court
Eureka, CA 95501
(1 copy) Hand Delivery
John A. Behnke, Esq.
CARTER, BEHNKE, OGLESBY &
BACIK
169 Mason Street, Suite 300
Ukiah, CA 95482
California Supreme Court
350 McAllister Street
San Francisco, CA 94102
(5 copies)
in the manner indicated below:
BY UNITED STATES MAIL: Following ordinary business practices, I sealed
true and correct copies of the above documents in addressed envelope(s) and placed them
at my workplace for collection and mailing with the United States Postal Service. I am
readily familiar with the practices of the San Francisco City Attorney's Office for
collecting and processing mail. In the ordinary course of business, the sealed envelope(s)
that I placed for collection would be deposited, postage prepaid, with the United States
Postal Service that same day.
BY PERSONAL SERVICE: I sealed true and correct copies of the above
documents in addressed envelope(s) and caused such envelope(s) to be delivered by hand
at the above locations by a professional messenger service. A declaration from the
messenger who made the delivery is attached or will be filed separately
with the court.
I declare under penalty of perjury pursuant to the laws of the State of
California that the foregoing is true and correct.
Executed November 9, 2006, at San Francisco, California.
Jennifer Strona