Memorandum of Points and Authorities Demurrer

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Memorandum of Points and Authorities Demurrer Powered By Docstoc
					 1   PAUL V. GALLEGOS, SBN 161408
     District Attorney of Humboldt County
 2
     TIMOTHY O. STOEN, SBN 37272
 3   Assistant District Attorney
     NANDOR VADAS, SBN 103577
 4   Deputy District Attorney
     825 Fifth Street, 4th Floor
 5   Eureka, CA 95501
 6
     707-445-7416

 7   Attorneys for Plaintiff

 8

 9
                         SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
                                     COUNTY OF HUMBOLDT
11

12
     ____________________________________
13                                       )
     THE PEOPLE OF THE STATE OF          )      Case No. DR 030070
14   CALIFORNIA,                         )
                                         )      PEOPLE'S MEMORANDUM OF
15
                             Plaintiff,  )      POINTS AND AUTHORITIES IN
16                                       )      OPPOSITION TO DEMURRER
           vs.                           )
17                                       )
     THE PACIFIC LUMBER COMPANY;         )      Date: July 28, 2003
18
     SCOTIA PACIFIC HOLDING              )      Time: 4:00 p.m.
19   COMPANY, SALMON CREEK               )      Dept: 3
     CORPORATION, and DOES 1 through 10, )      Judge: Honorable Christopher Wilson
20                                       )
                             Defendants. )
21
                                         )
22
     ____________________________________)

23

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 1                                    TABLE OF CONTENTS
                                                                                          Page
 2

 3   I.     INTRODUCTION                                                                  1

 4   II.    STATEMENT OF THE CASE                                                         1

 5   III.   DEFENDANT'S CONTENTIONS                                                       2
 6
     IV.    PEOPLE'S RESPONSE                                                             3
 7
     V.     STATEMENT OF FACTS                                                            3
 8
     VI.    STATUTORY AND REGULATORY FRAMEWORK                                            5
 9

10   VII.   ARGUMENT                                                                      6

11          A. THE STANDARD FOR RULING ON A DEMURRER IS LIBERAL
                  CONSTRUCTION                                                            6
12

13          B. THE FIRST AMENDED COMPLAINT IS NOT TIME-BARRED                             7

14                 1. The Causes of Action Accrued When the Appreciable Harm
                          Was Suffered, Beginning February 23, 1999.                      7
15

16
                   2. The Provisions of CEQA Neither Bar Nor Govern this Action.          9

17          C. NONE OF THE CLAIMS ARE BASED ON PRIVILEGED
                  COMMUNICATIONS                                                          10
18
                   1. The Noerr-Pennington Doctrine Does Not Apply to this Case
19
                          Because the Defendant Did Not Petition or Lobby the
20                        Government, Violated a Statute, and Denied the Public
                          Access to an Administrative Agency.                             11
21
                   2. The Litigation Privilege of Civil Code Section 47 Does Not
22
                          Apply.                                                          18
23
            D. THE COMPLAINT IS JURISDICTIONALLY SUFFICIENT                               21
24
                   1. Plaintiff Did Not Fail to Exhaust Administrative Remedies.          21
25

26                 2. There is No Failure to Join Because Complete Relief Can Be
                          Rendered Against the Defendant Alone.                           22
27

28
     No. DR030070                                - ii -
     ____________________________________________________________________________________________
     PEOPLE vs. PL: PEOPLE'S MEMORANDUM IN OPPOSITION TO DEMURRER
 1                 3. Under B&P 17203 a District Attorney Has Authority to Obtain
                          Restitution in a UCL Action on Behalf of Victims Both
 2
                          Known and Unknown.                                              24
 3
             E. THE ALLEGED CONDUCT IS AN UNFAIR BUSINESS PRACTICE                        25
 4
                   1. The Seventh Cause of Action is for a Fraudulent Business
 5                        Practice, Not a Breach of Contract.                             25
 6
                   2. The Defendant's Acts Constituted a Business Practice Subject
 7                        to the Provisions of the Unfair Competition Law.                26

 8                 3. A Fraudulent Business Practice Under the UCL Includes
                          Scientific Assertions that Are Capable of Being Shown
 9
                          to Be False in Court.                                           27
10
     VIII.   CONCLUSION                                                                   29
11

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     No. DR030070                                - iii -
     ____________________________________________________________________________________________
     PEOPLE vs. PL: PEOPLE'S MEMORANDUM IN OPPOSITION TO DEMURRER
 1                                                        TABLE OF AUTHORITIES
 2
                                                                                                                                         Page
 3
                                                                            CASES
 4
     Ascherman v. Natanson (1972) 23 Cal.App.3d 861 ...............................................                                      19
 5

 6
     Bank of the West v. Superior Court (Industrial Indemnity
     Co.) (1992) 2 Cal.4th 1254 .....................................................................................                    26
 7
     Blank v. Kirwan (1985) 39 Cal.3d 311 ...................................................................                            1, 16
 8
     Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d 1463 ..........................                                              5
 9

10   California Motor Transport Co. v. Trucking Unlimited, et al.,
     (1972) 404 U.S. 508 [30 L.Ed.2d 642] ...................................................................                            12, 13,
11   .................................................................................................................................   14
12
     Chen-Cheng Wang ex rel. United States v. FMC Corp.
13   (9th Cir. 1992) 975 F.2d 1412 ................................................................................                      28

14   Citizens Ass’n for Sensible Development of Bishop
     Area v. County of Inyo (1985) 172 Cal.App.3d 151 ...............................................                                    22
15

16
     City of Columbia v. Omni Outdoor Advertising, Inc.
     (1991) 499 U.S. 365 [113 L.Ed.2d 382] .................................................................                             17
17
     Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454 ............................                                            27
18
     Consumer Justice Center v. Trimedica International, Inc.
19
     (2003) 107 Cal.App.4th 595 ...................................................................................                      27
20
     Cortez v. Purolator Air Filtration Products Company
21   (2000) 23 Cal.4th 163 .............................................................................................                 9, 10
22
     County of San Joaquin v. State Water Resources Control
23   Board (1997) 54 Cal.App.4th 1144 ........................................................................                           22, 23

24   Davies v. Krasna (1975) 14 Cal.3d 502..................................................................                             8
25
     Dawvendewa v. Salt River Project Agric. Improvement
26   & Power Dist. (9th Cir.) 276 F.3d 1150 .................................................................                            23

27   Day v. Sharp (1975) 50 Cal.App.3d 904 ................................................................                              1
28
     No. DR030070                                - iv -
     ____________________________________________________________________________________________
     PEOPLE vs. PL: PEOPLE'S MEMORANDUM IN OPPOSITION TO DEMURRER
 1   Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc.
     (1961) 365 U.S. 12 [5 L.Ed.2d 464] .......................................................................               11
 2

 3   Endangered Habitats League, Inc. v. State Water Resources
     Control Board, et al. (1997) 63 Cal.App.4th 227...................................................                       21
 4
     Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377 ..................................                             5
 5

 6
     Garrison v. State of Louisiana (1964) 379 U.S. 64 [13 L.Ed.2d 125]....................                                   1

 7   Giboney v. Empire Storage & Ice Co. (1949) 336 U.S. 490
     [93 L.Ed.2d 834] .....................................................................................................   13, 18
 8
     Gressley v. Williams (1961) 193 Cal.App.2d 636...................................................                        6
 9

10   Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868 ........................................                            1

11   Kaczorowski v. Mendocino County Bd. Of Supervisors
     (2001) 88 Cal.App.4th 564 .....................................................................................          23
12

13   Karapetian v. Carolan (1948) 83 Cal.App.2d 344 .................................................                         23

14   Kasky v. Nike, Inc., et al. (2002) 27 Cal.4th 939 ....................................................                   11
15
     Keru Investments, Inc. v. Cube Co. (1998) 63 Cal.App.4th 1412...........................                                 8
16
     Kimmel v. Goland (1990) 51 Cal.3d 202 ................................................................                   19
17
     Korea Supply Co. v. Lockheed Martin Corp.
18   (2003) 29 Cal.4th 1134 ...........................................................................................       25
19
     Kraus v. Trinity Mgmt. Serv., Inc. (2000) 23 Cal.4th 116 ......................................                          25
20
     Lake Madrone Water District v. State Water Resources
21   Control Board (1989) 209 Cal.App.3d 163 ............................................................                     15
22
     Ludwig v. Superior Court (1995) 37 Cal.App.4th 8 ...............................................                         12, 16
23
     People v. Casa Blanca Convalescent Homes, Inc.
24   (1984) 159 Cal.App.3d 509 ....................................................................................           5
25
     People v. McKale (1979) 25 Cal.3d 626.................................................................                   26, 27
26
     People v. Sims (1982) 32 Cal.3d 468 ......................................................................               20
27

28
     No. DR030070                                -v-
     ____________________________________________________________________________________________
     PEOPLE vs. PL: PEOPLE'S MEMORANDUM IN OPPOSITION TO DEMURRER
 1   People v. Thomas Shelton Powers, M.D., Inc.
     (1992) 2 Cal.App.4th 330 .......................................................................................         24
 2

 3   Pettus v. Cole (1996) 49 Cal.App.4th 402 ..............................................................                  19

 4   Professional Real Estate Investors, Inc. v. Columbia
     Pictures Industries, Inc. (1993) 508 U.S. 49 [123 L.Ed.2d 611]............................                               17
 5

 6
     Rubin v. Green (1993) 4 Cal.4th 1187 ....................................................................                19

 7   Saunders v. Superior Court (Cal. Reporting Alliance, et al.)
     (1994) 27 Cal.App.4th 832 .....................................................................................          5
 8
     Schlegel v. Bebour (1988) 841 F.2d 937.................................................................                  19
 9

10   Silberg v. Anderson (1990) 50 Cal.3d 205..............................................................                   18

11   South Bay Chevrolet v. General Motors Acceptance Corp.
     (1999) 72 Cal.App.4th 861 .....................................................................................          26
12

13   State Farm Fire & Cas. Co. v. Superior Court (1996)
     45 Cal.App.4th 1093 ...............................................................................................      5
14
     Stevens v. Sup. Ct. (API Auto Ins. Services) (1999)
15
     75 Cal.App.4th 594 .................................................................................................     6
16
     Stutz Motor Car of America v. Reebok It’l, Ltd.
17   (C.D. Cal. 1995) 909 F.Supp. 1353 ........................................................................               8

18   United Mine Workers v. Pennington (1965) 381 U.S. 657
     [14 L.Ed.2d 626] .....................................................................................................   11
19

20   United States ex rel. Milam v. Regents of the Univ. of Cal.
     (1995 U.S. Dist.) 912 F.Supp. 868..........................................................................              28
21
     Walton v. Guinn (1986) 187 Cal.App.3d 1354 .......................................................                       7
22

23   Wise v. Pacific Gas and Electric Company (1999)
     77 Cal.App.4th 287 .................................................................................................     26
24
     Zastrow v. Zastrow (1976) 61 Cal.App.3d 710 ......................................................                       17
25

26

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     No. DR030070                                - vi -
     ____________________________________________________________________________________________
     PEOPLE vs. PL: PEOPLE'S MEMORANDUM IN OPPOSITION TO DEMURRER
 1                                                                       STATUTES
 2
     Business & Professions Code
 3    Section 17200.......................................................................................................               5
      Section 17203.......................................................................................................               24
 4    Sections 17200 – 17210 .......................................................................................                     5
      Section 17208.......................................................................................................               7, 9, 10
 5

 6   Civil Code
        Section 47.............................................................................................................          10
 7      Section 47(b)........................................................................................................            18, 19,
     .................................................................................................................................   20
 8
        Section 1709.........................................................................................................            14
 9      Section 1710, subd. 3 ...........................................................................................                14

10   Code of Civil Procedure
      Section 12a...........................................................................................................             7
11
      Section 389(a) ......................................................................................................              22
12
      Section 452...........................................................................................................             6

13   Government Code

14     Section 6700.........................................................................................................             7
15
     OTHER
16
     California Code of Regulations
17    Title 14, § 1034(w) ..............................................................................................                 6
      Title 14, § 1034(x)(10).........................................................................................                   6
18
      Title 14, § 1091.1 .................................................................................................               6
19    Title 14, § 1091.2 .................................................................................................               6
      Title 14, § 1091.4.5 ..............................................................................................                5
20    Title 14, § 1091.5 .................................................................................................               6
      Title 14, § 1091.6 .................................................................................................               6
21

22   Public Resources Code
      Section 4511, et seq. ............................................................................................                 10
23    Section 4601.........................................................................................................              15
      Section 21000, et seq. ..........................................................................................                  10
24    Section 21167.......................................................................................................               10
25
      Section 21177.......................................................................................................               21

26   Water Code
      Section 13267(b)..................................................................................................                 15,
27    Section 13268.......................................................................................................               15
28
     No. DR030070                                - vii -
     ____________________________________________________________________________________________
     PEOPLE vs. PL: PEOPLE'S MEMORANDUM IN OPPOSITION TO DEMURRER
 1   I.      INTRODUCTION
 2
             This case against Defendant Pacific Lumber Company1 is one of calculated falsehood at
 3
     odds with the premises of democratic government.
 4
                     "The use of the known lie as a tool is at once at odds with the
 5                   premises of democratic government and with the orderly manner in
 6
                     which economic, social, or political change is to be effected.
                     Calculated falsehood falls into that class of utterances which ' are
 7                   no essential part of any exposition of ideas, and are of such slight
                     social value as a step to truth that any benefit that may be derived
 8                   from them is clearly out-weighed by the social interest in order and
                                     "
                     morality. . . . '
 9
     (Garrison v. State of Louisiana (1964) 13 L.Ed.2d 125, 379 U.S. 64, 75.)
10

11   II.     STATEMENT OF THE CASE

12           On Monday, February 24, 2003, Plaintiff, the People of the State of California, filed its
13
     original complaint against Pacific Lumber under Section 17200 of the Business and Professions
14
     Code, known as the Unfair Competition Law ("UCL"), pertaining to the Headwaters Forest
15
     Project. On May 27, 2003, Plaintiff filed a First Amended Complaint (“FAC”) alleging seven
16

17
     causes of action, and seeking civil penalties, injunctive relief, and restitution. On June 9, 2003,

18   Pacific Lumber filed its demurrer to the First Amended Complaint.2

19

20

21

22   1
       The Pacific Lumber Company, Scotia Pacific Holding Company, and Salmon Creek Corporation
     (collectively referred to herein as "the Defendant").
23
     2
       A demurrer can be used only to challenge defects that appear on the face of the pleading, or from
24   matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No
     other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)
25   Judicial notice of court records and files is limited to matters that are indisputably true; the court cannot
     accept as true the contents of pleadings or exhibits just because they are part of the court record; such
26   documents are inadmissible hearsay. (Day v. Sharp (1975) 50 Cal.App.3d 904, 905.) The Defendant
     makes three improper allegations, including a personal attack, on the very first page of its Memorandum
27   of Points and Authorities ("Def. P & A"), regarding matters totally outside of the face of the complaint and
     totally impermissible for judicial notice. The Court is respectfully requested to disregard these improper
28   allegations.
     No. DR030070                                         -1-
      ____________________________________________________________________________________________
                                S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1          The causes of action in the First Amended Complaint, all violations of Business and
 2
     Professions Code Section 17200, are as follows:       First Cause of Action: Knowing or grossly
 3
     negligent submission of false information to government decision makers;
 4
            Second Cause of Action: Not notifying government of corrected information after
 5

 6
     submitting false information;

 7                                                              s
            Third Cause of Action: Failing to correct government' material reliance on false

 8   information when certifying the final Environmental Impact Report;
 9
                                                                 s
            Fourth Cause of Action: Failing to correct government' material reliance on false
10
     information when approving "Long Term Sustained Yield" projection, SYP Alternative 25;
11
                                                                s
            Fifth Cause of Action: Failing to correct government' material reliance on false
12

13   information when approving the Habitat Conservation Plan and Incidental Take Permit;

14           Sixth Cause of Action: Violating Forest Practice Rules by submitting Timber Harvest
15
     Plans and harvesting timber based upon a fraudulent Sustained Yield Plan and fraudulent Habitat
16
     Conservation Plan;
17
            Seventh Cause of Action: Taking $300 million dollars from escrow in contravention of
18
     implied condition that all escrow documents were untainted by fraud and express condition
19

20   requiring delivery of approved Sustained Yield Plan.

21   III.   DEFENDANT’S CONTENTIONS
22
            In its demurrer, Defendant makes four arguments: (1) that each cause of action is time-
23
     barred; (2) that the complaint infringes upon privileged communications; (3) that there is a
24
     jurisdictional deficiency; and (4) that the alleged conduct is not an unfair business practice.
25

26

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     No. DR030070                              -2-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   IV.    PEOPLE’S RESPONSE
 2
            The seven causes of actions in this claim are within the applicable statute of limitations.
 3
     There is no privilege for the fraudulent acts of the Defendant for which the People of the State of
 4
     California properly seek redress. There is no jurisdictional deficiency. The Defendant’s
 5

 6
     fraudulent acts are in violation of the California Unfair Competition Law.

 7   V.     STATEMENT OF FACTS

 8          The factual background of this case, as set forth in the First Amended Complaint, is as
 9
     follows:
10
            On September 28, 1996, four parties -- Pacific Lumber; Maxxam Corporation, by Charles
11
     E. Hurwitz; The United States Department of the Interior; and The California Resources Agency
12

13   -- signed the Headwaters Agreement whereby, subject to certain conditions, Pacific Lumber

14   would sell to the public 4500 acres of its timberlands, commonly referred to as the "Headwaters
15
     Forest," and would exchange additional property, for a federal and state combined consideration
16
     of $300 million, an amount subsequently increased. (FAC ¶ 23.) Under the terms of this
17
     agreement Pacific Lumber, was required to prepare and submit to the State of California a
18
     Sustained Yield Plan ("SYP") for its "resulting Pacific Lumber Timber property" (approximately
19

20   211,700 acres) that was "consistent with applicable and legal requirements." An additional

21   requirement was the submission of a Habitat Conservation Plan. (Ibid.)
22
            Between August 1998 and November 18, 1998, the Defendant devised a scheme to
23
     conceal required landslide information from the government and the public. This was done in
24
     order to maximize timber harvesting rates under its proposed sustained yield plan so as to pay off
25

26   timber bonds (FAC ¶¶ 27-28.)

27          The North Coast Regional Water Quality Control Board ("Water Quality Board") ordered
28
     No. DR030070                              -3-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   the Defendant to submit reports on various watersheds, including Bear Creek and Jordan Creek.
 2
     (FAC ¶ 25.) In response, on November 18, 1998, Pacific Lumber submitted materially false
 3
     landslide information to the government:
 4
                    "[W]e discovered harvest and landslide associations
 5                        that directly and dramatically contradicted those
 6
                          encountered in Bear Creek."

 7                  "In Jordan Creek, 85 percent of the recent landslides
                           had occurred on the older harvested area, and
 8                         only 15% on the recently harvested area."
 9
                    (FAC ¶ 29.)
10
            From January 22, 1999 until February 23, 1999, the Defendant intentionally concealed the
11
     correct information from the Director of the California Department of Forestry (CDF). This
12

13   prevented the Director from complying with his legal duty to circulate the corrected information

14   to the public. (FAC ¶¶ 29-32.)
15
            From February 23, 1999 through March 1, 1999, the Defendant failed to correct the
16
                                                                         s
     material reliance by the government and the public on Pacific Lumber' false information when
17
     approving, respectively, the Final EIR, the Sustained Yield Plan Alternative 25 (authorizing 40
18
     million more board feet per year than the previously approved alternative), and the Habitat
19

20   Conservation Plan. (FAC ¶¶ 33-37.)

21          From March 1, 1999 to the present time, the Defendant submitted timber harvest plans
22
     and proceeded to harvest timber based upon a fraudulent sustained yield and habitat conservation
23
     plan. (FAC ¶¶ 70-73.)
24
            From March 1, 1999 to the present time, the Defendant took and appropriated $300
25

26   million dollars from escrow in contravention of (a) an implied condition that all escrow

27

28
     No. DR030070                              -4-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   documents were untainted by fraud, and (b) an express condition requiring delivery of a CDF-
 2
     approved sustained yield plan. (FAC ¶¶ 74-80.)
 3
     VI.     STATUTORY AND REGULATORY FRAMEWORK
 4
             The People of the State of California seek civil penalties, injunctive relief, and restitution
 5

 6
                       s
     for Pacific Lumber' violation of the California Unfair Competition Law, Business & Professions

 7   Code sections 17200 through 17210. This law makes it illegal for any person, including a

 8   corporation, to engage in unfair competition, which is defined by section 17200 as "any unlawful,
 9
     unfair or fraudulent business act or practice . . . ."
10
             An unlawful business act arises from the violation of any law, whether federal, state, or
11
     local, when committed pursuant to business activity. (Farmers Ins. Exch. v. Superior Court
12

13   (1992) 2 Cal.4th 377, 383; State Farm Fire & Cas. Co. v. Superior Court (1996) 45 Cal.App.4th

14   1093, 1102-1103,) A fraudulent business act "only requires a showing members of the public are
15
     likely to be deceived,' compared to a showing of all the elements of common law fraud.
     '                     "
16
     (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 839.) Negligent misrepresentations are
17
     included in the definition of fraud. (Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d
18
     1463, 1473.) An unfair business practice occurs when "it offends an established public policy or
19

20   when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to

21   consumers." (People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 530.)
22
                                                                       s
             The Forest Practice Rules authorize a Sustained Yield Plan' findings on environmental
23
     watershed impacts to substitute for findings which would otherwise be required in a Timber
24
     Harvest Plan ("THP"). Thus, this requires that such findings be based, at a minimum, on correct
25

26   landslide data affecting sediment delivery. First, the Sustained Yield Plan is effective for ten

27   years (Title 14 Cal. Code of Regs.§ 1091.4.5 ), and is officially deemed "a means for addressing
28
     No. DR030070                              -5-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   …cumulative effects analysis which includes issues of fish and wildlife and watershed impacts
 2
     on a large landscape basis." (Title 14 Cal. Code of Regs.§ 1091.1) Second, and most
 3
     significantly, the THP "may rely upon" the Sustained Yield Plan as to environmental watershed
 4
     impacts. (Title 14 Cal. Code of Regs.§1091.2.)
 5

 6
            California Code of Regulations specifically requires the Sustained Yield Plan to address

 7   various fish and wildlife issues including "the potential individual or cumulative effect of timber

 8   operations." Additionally, it requires that the Sustained Yield Plan" shall discuss and include
 9
     feasible measures planned to avoid or mitigate potentially significant adverse environmental
10
     effects on such fish and wildlife." (Title 14 Cal. Code of Regs.§ 1091.5, emphasis added.)
11
     Finally, a Sustained Yield Plan is specifically required to address various watershed issues,
12

13   including feasible measures planned to mitigate or avoid significant adverse impacts. (Title 14

14   Cal. Code of Regs.§ 1091.6.)
15
            The THP itself, in the absence of a Sustained Yield Plan, is required to provide environ-
16
     mental impact information, e.g., "the presence and protection of non-listed species which may be
17
     significantly impacted by the timber operations" (Title 14 Cal. Code of Regs.§ 1034(w)) and the
18

19
     "location of known unstable areas and slides" (Title 14 Cal. Code of Regs. § 1034(x)(10).)

20   VII.   ARGUMENT

21          A.      THE STANDARD FOR RULING ON A DEMURRER IS LIBERAL
                    CONSTRUCTION.
22

23          Code of Civil Procedure, Section 452 sets forth the legal standard for ruling on a

24   demurrer -- liberal construction with a view to substantial justice between the parties. (See
25
     Stevens v. Sup. Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601.) As stated in
26
     Gressley v. Williams (1961) 193 Cal.App.2d 636, 639, "The court must, in every stage of an
27

28
     No. DR030070                              -6-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   action, disregard any defect in the pleadings which does not affect the substantial rights of the
 2
     parties. . . . All that is necessary as against a general demurrer is to plead facts entitling the
 3
     plaintiff to some relief.”
 4
             B.      THE FIRST AMENDED COMPLAINT IS NOT TIME-BARRED.
 5

 6
             The Defendant’s first argument is that the first amended complaint is time-barred either

 7            s
     under UCL' four-year statute of limitations or under CEQA. As will be shown, both of these

 8   arguments are specious.
 9
                     1.       The Causes Of Action Accrued When The Appreciable Harm Was
10                            Suffered, Beginning February 23, 1999.

11           The UCL provides that any action to enforce any cause of action thereunder "shall be
12
     commenced within four years after the cause of action accrued." (Bus. & Prof. Code, Section
13
     17208.) Since the time of filing of an original complaint is deemed to be the date of
14
     commencement of the actions for purposes of a statute of limitations (Walton v. Guinn (1986)
15

16
     187 Cal.App.3d 1354, 1360 the action must, in this case, be deemed to have commenced on the

17   date of filing of the original complaint, i.e., February 24, 2003.1

18           The California Supreme Court defines the date an action has accrued to be the date of
19
     infliction of appreciable and actual harm, as distinguished from the date of breach of duty:
20
                     "[I]n Budd v. Nixen (1971) 6 Cal.3d 195 . . . , we held that the
21                   limitations period on plaintiff' legal malpractice action did not
                                                    s
                     begin until plaintiff had suffered 'appreciable harm.' at p.
                                                                                (Id.
22
                            The                          we
                     200.) ' mere breach of . . . duty,' said, '    causing only nominal
23                   damages, speculative harm, or the threat of future harm--not yet

24

25

     1
26    Code of Civil Procedure § 12a provides that if the last day for performance of an act is a holiday (defined
     by Gov. Code § 6700, to include "every Sunday"), that period is extended to include the next day which is
27   not a holiday. Since four-years from February 23, 1999 (the earliest date of accrual for all causes of
     action) occurred on a Sunday, the filing of this action on Monday, February 24, 2003, fell within the four-
28   year UCL limitations period.
     No. DR030070                                       -7-
     ____________________________________________________________________________________________
                               S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1                  realized'          does
                              normally ' not suffice to create a cause of action
                           ")
                    . . . .'
 2

 3   (Davies v. Krasna (1975) 14 Cal.3d 502, 513 emphasis added.)

 4          Here, the Defendant cites a state court of appeal case and a federal district court case,

 5   both of which in fact work against Pacific Lumber. In Keru Investments, Inc. v. Cube Co., Inc.
 6
     (1998) 63 Cal.App.4th 1412 the holder of a deed of trust and the subsequent owner of an apart-
 7
     ment building brought an action for negligent construction against the contractor hired by a prior
 8
     owner to do seismic retrofit construction work. The Court of Appeal approved Davies and held
 9

10   that the more fundamental problem of plaintiffs'claim of nonaccrual was that the building itself

11   sustained the damage . . . prior to the transfer of ownership. (Id. at p. 1423) Thus, the Court of
12
     Appeal in Keru followed the holding in Davies that appreciable damage is the accrual test.
13
                                                                           l,
            In the federal case of Stutz Motor Car of America v. Reebok Int' Ltd., 909 F.Supp. 1353,
14
     1363 (C.D.Cal. 1995), the plaintiff alleged that the defendant misappropriated and began
15

16
                                     s                                                      s
     application and use of plaintiff' secret on or about May 1986. In ruling that plaintiff' UCL

17   action had accrued as of four years from that date, the federal court relied on two facts: (1) "this

18   act clearly would have injured plaintiff' business"; and (2) the "alleged wrong (misappropri-
                                             s
19
     ation of the air bladder) was a single, irrevocable wrong as opposed to a series of multiple
20
     wrongs." (Id. at pp. 1363-1364, emphasis added).
21
            Neither of these findings in Stutz supports the position of the Defendant. First, the
22

23   Defendant’s act of submission of false data in November 1998 would not "clearly have injured"

24   the public at that time, because if CDF Sacramento had received the corrected information, it had
25
     both the right and the duty to recirculate the EIR as late as February 23, 1999. The corrected
26
     information would have totally prevented any injury. Second, in order for the Defendant’s
27

28
     No. DR030070                              -8-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   submission of false data to have caused damage, it was necessarily part of a series of multiple
 2
     wrongs, i.e., of an act of fraudulent concealment of corrective data for every day from January
 3
     22, 1999 through February 23, 1999. Finally, the appreciable harm suffered was on the day, after
 4
     March 1, 1999, that the harvest of timber exceeded 136.6 million board-feet. (FAC ¶ 72.)
 5

 6
                                                         s
            Based on the foregoing authorities, Plaintiff' first cause of action must be deemed not to

 7   have accrued prior to February 23, 1999, the first day of appreciable damage and the last day that

 8   the alleged particular harm could have been avoided. Since the remaining causes of action are
 9
     based on the failure to notify or to correct reliance upon the false data, those causes also must be
10
     deemed to have accrued on the last day that the alleged particular harm could have been avoided
11
     by notification. For the second and third causes of action that date is February 23, 1999. For the
12

13   fourth and fifth causes of action that date is March 1, 1999. And for the sixth and seventh causes

14   of action that date is the most recent day in the year 2003.
15
                    2.       The Provisions of CEQA Neither Bar Nor Govern This Action.
16
            Business and Professions Code section 17208 is cumulative to and supercedes the statute
17
     of limitations of all other statutes. (Cortez v. Purolator Air Filtration Products Company (2000)
18
     23 Cal.4th 163, 179.)
19

20          In Cortez, a former employee brought UCL action for failure to pay overtime under a

21   section of the Labor Code after the statute of limitations for that section had run. The Court of
22
                             s
     Appeal held that the UCL' 4-year limitations provision of Business and Professions Code
23
                                            s
     section 17208 superceded the Labor Code' statute of limitations. The Court left no doubt of this
24
     in their holding:
25

26                                                            any
                    "Section 17208 is clear. It provides that ' action to enforce any
                    cause of action under this chapter shall be commenced within four
27                  years after the cause of action accrued.'(Italics added.) We
28
     No. DR030070                              -9-
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1                   recognize that any business act or practice that violates the Labor
                    Code through failure to pay wages is, by definition (§ 17200), an
 2
                    unfair business practice. It follows that an action to recover
 3                  wages that might be barred if brought pursuant to Labor Code
                    section 21194 still may be pursued as a UCL action seeking
 4                  restitution pursuant to section 17203 if the failure to pay
                    constitutes a business practice. Nonetheless, the language of
 5
                    section 17208 admits of no exceptions. Any action on any UCL
 6
                    cause of action is subject to the four-year period of limitations
                    created by that section."
 7
     (Id. at pp. 178-179, bold emphasis added.)
 8

 9
                       s
            From Cortez' "no-exceptions" construction of Section 17208 -- that "any" action on

10   "any" UCL cause of action is subject to the four-year period of limitations -- it necessarily

11   follows that the UCL statute supercedes the limitations provisions in the California
12
     Environmental Quality Act ("CEQA") (Public Resources Code sections 21000 et seq.) and the
13
      berg-Nejedly Forest Practice Act ("FPA") (Public Resources Code sections 4511 et seq.).
     Z'
14
            In addition, the Defendant’s contention that the 30-day and 180-day limitations provision
15

16   of the CEQA statute, Public Resources Code section 21167, prevails over the UCL is

17   undermined by the very terms of that provision, which is limited to "[a]ny action or proceeding to
18
     attack, review, set aside, void, or annul the . . . acts or decisions of a public agency." These terms
19
     show that Section 21167 is inapplicable to this lawsuit, which does not seek to undo the project
20
     and is not against a public agency.
21
                                                     s
            For the foregoing reasons, Pacific Lumber' CEQA limitations defense is specious.
22

23          C.      NONE OF THE CLAIMS ARE BASED ON PRIVILEGED
                    COMMUNICATIONS.
24
            The Defendant’s second argument is that the first amended complaint is based on
25

26   privileged communications and therefore barred either under "the Noerr-Pennington doctrine" or

27   under the litigation privilege of Civil Code section 47. Neither of these arguments succeed.
28
     No. DR030070                              - 10 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   Moreover, the pernicious implications of the Defendant’s position on Noerr-Pennington are
 2
     staggering, being tantamount to a "right to lie" to government, which, if accepted, would have the
 3
     radical, practical effect of making it practically impossible to enforce any law. 1
 4
                     1.      The Noerr-Pennington Doctrine Does Not Apply to This Case Because
 5                           the Defendant Did Not Petition or Lobby the Government, Violated a
 6
                             Statute, and Denied the Public Access to an Administrative Agency.

 7           Defendant would have this Court adopt an unprecedented and sweeping position – that

 8   “any conduct involving government action” is immunized by the Noerr-Pennington doctrine.
 9
     (Def. P & A p. 14.) Needless to say, Noerr-Pennington does not stand for this proposition, and
10
     when frankly examined, the doctrine’s safeguards do not apply to the Defendant’s acts.
11
             Based on protections afforded by the First Amendment and fears about the threat of
12

13   liability chilling political speech, the Noerr-Pennington doctrine was first recognized in two

14   Supreme Court cases (Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc. (1961) 5
15
     L.Ed2d 464, 365 U.S. 12 and United Mine Workers v. Pennington (1965) 14 L.Ed.2d 626, 381
16
     U.S. 657) holding federal antitrust laws inapplicable to private parties who attempt to influence
17
     governmental action – even where the petitioning has anticompetitive effects.
18
             As a threshold matter, the Defendant’s selective invocation of Noerr-Pennington fails
19

20   because the Defendant’s conduct amounted to neither lobbying nor petitioning activities. Despite

21   the Defendant’s best efforts to transmute their conduct to fit the doctrine, the Defendant was an
22
     applicant attempting to secure a benefit from the government – namely a permit to log its
23
     landholdings pursuant to regulations promulgated under state and federal environmental laws.
24

25
     1
      Even when the integrity of government in a free society is not implicated, corporations engaged in
26   commerce have no right to lie to anyone. (See Kasky v. Nike, Inc., et al., 27 Cal.4th 939, 969 ("[W]e
     conclude that when a corporation, to maintain and increase its sales and profits, makes public statements
27   defending labor practices and working conditions at factories which where its products are made, those
     public statement are commercial speech that may be regulated to prevent consumer deception.").)
28
     No. DR030070                              - 11 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   They were not “lobbying” or “petitioning” state and federal agency officials when they applied
 2
     for the approval of a Sustained Yield Plan and Habitat Conservation Plan.
 3
            Unlike the facts of this case, every case advanced by the Defendant in support of its
 4
     position involves a government actor fashioning policy, legislation or a court decision in
 5

 6
     response to a defendant’s request to do so. For instance in Ludwig v. Superior Court (1995) 37

 7   Cal.App.4th 8, 21, the developer used surrogates to derail a rival’s city approved project. As a

 8   matter of common sense, the meanings to be given lobbying and petitioning are those aligned
 9
     with the First Amendment policy behind the Noerr-Pennington doctrine, i.e., "lobbying" as an
10
     attempt to influence policy, and "petitioning" as an attempt to "redress grievances, neither of
11
     which could possibly apply in the case at bar.
12

13          Herein, the government regulators – CDF and the Department of Fish and Game – were

14   not determining policy, the scope of legislation, or acting in a judicial capacity. They were
15
     ensuring compliance with procedures based, in part, on information supplied by the Defendant.
16
     As it turns out, the information was fraudulently provided by the Defendant.
17
            In addition to this threshold consideration, there is a "bright line" test to show whether the
18
     doctrine immunizes a defendant. The Noerr-Pennington doctrine requires a defendant meet the
19

20   qualifying condition of (1) not violating a valid statute; and (2) not meet the "sham exception"

21   disqualifying condition, which includes denying access to administrative agencies and courts.
22
     (California Motor Transport v. Trucking Unlimited (1972) 30 L.Ed2d 642, 647-648, 404 U.S.
23
     508, 512-513 [finding the Noerr-Pennington doctrine inapplicable in an administrative context,
24

25

26

27

28
     No. DR030070                              - 12 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1                                                     s
     and remanding the case for trial despite defendant' contentions its First Amendment rights were
 2
     violated].)
 3
            Confirming a "no violation of statute" qualifying condition, the California Motor
 4
     Transport Court said:
 5

 6
                    "It is well settled that First Amendment rights are not
                    immunized from regulation when they are used as an integral part
 7                  of conduct which violates a valid statute. [Citations.]"

 8   (California Motor Transport Co. v. Trucking Unlimited et al, supra, 30 L.Ed2d at p. 648,
 9
     emphasis added.)
10
            The social policy behind this "no violation of statute" requirement is that any alternative
11
     would make it impossible to enforce any law. This point is pointedly made by California Motor
12

13   Transport itself, for it incorporated the following quote, wholesale, from the case of Giboney v.

14   Empire Storage & Ice Co. (1949) 93 L.Ed2d 834, 843-844, 336 U.S. 490, 502, which, although
15
     rendered in sustaining an injunction against picketing in violation of a statute banning secondary
16
                                             s
     boycotts, necessarily applies to society' right to enforce any law:
17
                    "It is true that the agreements and course of conduct here were as in
18
                    most instances brought about through speaking or writing. But it
19
                    has never been deemed an abridgment of freedom of speech or
                    press to make a course of conduct illegal merely because the
20                  conduct was in part initiated, or carried out by means of
                    language, either spoken, written, or printed. . . . Such an
21                  expansive interpretation of the constitutional guaranties of
22
                    speech and press would make it practically impossible ever to
                    enforce laws against agreements in restraint of trade as well as
23                  many other agreements and conspiracies deemed injurious to
                    society."
24
     (California Motor Transport Co., supra, 30 L.Ed2d at p. 648, emphasis added.)
25

26          And confirming "no denial of access" being a sham-exception disqualifying condition, the

27   Supreme Court held:
28
     No. DR030070                              - 13 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1                    "More critical are other allegations . . . which elaborate on the
                      'sham'  theory by stating that the power, strategy, and resources of
 2
                      the petitioners were used to harass and deter respondents in their
 3                    use of administrative and judicial proceedings so as to deny them
                       free                        to
                      ' and unlimited access' those tribunals. . . . It is alleged that
 4                    petitioners ‘instituted the proceedings and actions . . . with or
                      without probable cause, and regardless of the merits of the cases.’
 5
                      The nature of the views pressed does not, of course, determine
 6
                      whether First Amendment rights may be invoked; but they may
                      bear upon a purpose to deprive the competitors of meaningful
 7                    access to the administrative agencies and courts. . . and thus
                      fall within the exception to Noerr."
 8

 9
     (Id. at pp. 642, 647, emphasis added.)

10           Applying California Motor Transport to our case, it is clear that there could not be a

11   stronger case against Noerr-Pennington applicability because the allegations in the complaint
12
     show that the Defendant fails to meet the qualifying condition, and fails to avoid the
13
     disqualifying condition.
14
             In regards to the qualifying condition of violating a valid statute, the complaint shows the
15

16   Defendant actually violated four statutes. The first statutory violation occurred when the

17   Defendant concealed the corrected Jordan Creek data from CDF Sacramento after providing the
18
     false data published by CDF Sacramento. In doing so the Defendant, violated Civil Code section
19
     1710, subd. 3 1 (FAC § 43), prohibited by section 1709. As a second statutory violation, the
20
     complaint shows that the Defendant, in submitting false information (FAC § 29), was responding
21
     to an "order by Water Quality for . . . sediment source inventories and the reports" (FAC ¶ 25), an
22

23

24

25

     1
26     "A deceit . . . is . . . the suppression of a fact, by one . . . who gives information of other facts which are
     likely to mislead for want of communication of that fact." (Civil Code sec. 1710(3).) "One who willfully
27   deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage
     which he thereby suffers." (Civil. Code sec. 1709.)
28
     No. DR030070                              - 14 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   order which is authorized by Water Code section 13267(b);1 the falsification of any responsive
 2
     report is a criminal wrong under Water Code section 13268. Third, the complaint shows that the
 3
     Defendant, in submitting Timber Harvest Plans and commencing timber harvesting without a
 4
     valid Sustained Yield Plan, violated three Forest Practice Rules (FAC ¶ 71), a criminal violation
 5

 6
     under Public Resources Code section 4601.

 7           Fourth, the complaint shows that the Defendant, in fraudulently submitting false infor-

 8   mation to Water Quality, violated Penal Code, Section 115 (a) ("Every person who knowingly
 9
     . . . offers any false . . . instrument to be . . . filed . . . in any public office within this state, which
10
     instrument, if genuine, might be filed . . . under any law of this state . . . is guilty of a felony.")
11
             The Defendant additionally falls before the "no-denial-of-access" sham-exception
12

13   disqualifying condition. The complaint shows that the Defendant had both the purpose and result

14   of denying the access of the public to the CDF recirculation process. It alleges that Pacific
15
     Lumber "conceived a tactic to conceal" the corrected Jordan Creek report "from the legally
16
     designated CDF office in Sacramento," which would have been required to recirculate the final
17
     EIS/EIR "to the public, with the addition of the correct Jordan Creek data, and an opportunity
18
                                                                   comments' the correct Jordan
     would have been required to be given to all of them to submit '        on
19

20   Creek data." (FAC ¶¶ 31-32.) And, it alleges that Pacific Lumber succeeded in this purpose to

21   deny the public access. (FAC ¶ 51.)
22
                                                                           s
             One might ask how the Defendant handles the U.S. Supreme Court' dispositive case of
23
     California Motor Transport. The answer is by ignoring the dictates of the U.S. Supreme Court
24

25

     1
26     Water Code sec. 13267(b) authorizes a regional water quality control board to require that any person
     proposing to discharge wastes furnish "such technical or monitoring program reports as the board may
27   specify." Waste includes sediment. (Lake Madrone Water District v. State Water Resources Control Board
     (1989) 209 Cal.App.3d 163, 169.)
28
     No. DR030070                              - 15 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   much less citing the case. The Defendant then proceeds down this path even further by (1)
 2
     totally failing to mention the qualifying condition for the Noerr-Pennington doctrine; and (2)
 3
     concentrates and distorts the sham-exception disqualifying condition.
 4
             The Defendant ignores the qualifying condition and cites two California cases as
 5

 6
     precedent in support of its contention of Noerr-Pennington applicability. However, neither of

 7   those involved violation of a statute.

 8           The first case, Ludwig v. Superior Court, supra, 37 Cal.App.4th 8, arose from a city'
                                                                                                 s
 9
     lawsuit against a developer for interference with contractual relations in making environmental
10
                           s                                                   s
     objection to plaintiff' efforts to attract a mall, the developer defendant' attempts to influence
11
     government (a) involved no alleged violation of a statute, and (b) involved no alleged denial of
12

13   access to any agency of government.

14           The second case, Blank v. Kirwin (1985) 39 Cal.3d 311, dealt with a lawsuit by an
15
     unsuccessful applicant for a license to operate a poker club alleging a conspiracy to legalize and
16
     monopolize the operation of poker clubs by zoning restrictions and by the denial of a license.
17
     The defendant’s attempts to influence government in that case (a) involved no violation of any
18
     statute because plaintiff' claimed violation of the Cartwright Act was found to be untenable;1 (b)
                              s
19

20   involved solely "political" lobbying in the form of influencing zoning; and (c) involved no

21   alleged denial of access to any agency of government.
22
             Pursuant to its "sham exception" distortion, the Defendant argues that the language of two
23
     other Supreme Court cases is solely "political" lobbying in the form of influencing zoning and
24

25

26
     1
27     The Blank court stated, "[D]efendant's efforts, as we have concluded, cannot violate the Cartwright Act."
     (Id. at p. 329.)
28
     No. DR030070                              - 16 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   involved no alleged denial of access to any agency of government.
 2
             First, the Defendant cites City of Columbia v. Omni Outdoor Advertising, Inc. (1991) 113
 3
     L.Ed 2d 382, 399, 499 U.S. 365, 382, for the proposition that it is not a sham situation if the
 4
     defendant genuinely seeks to achieve his governmental result even though through improper
 5

 6
     means. However, in that case, there was no allegation that any parties were denied access to the

 7   city council.

 8           Second, the Defendant cites Professional Real Estate Investors, Inc. v. Columbia Picture
 9
     Industries, Inc. (1993) 123 L.Ed 2d 611, 630, 508 U.S. 49, 60, fn 5, in support of the proposition
10
     that a successful petition or lawsuit is by definition a reasonable effort at petitioning for redress
11
     and therefore not a sham. Once again, there was no allegation in that case that any parties were
12

13   denied access to the courts in the course of their litigation.

14           In both of these U.S. Supreme Court cases the rulings of no-sham presumed no denial of
15
     access to the government agency involved, whether legislative body or court system. However, in
16
     our case, the Defendant is alleged to have denied the public access to the CDF recirculation
17
     process by fraudulent concealment of the corrective Jordan Creek data. The Defendant’s genuine
18
     seeking of a favorable result, and its successful obtaining of a favorable result should not be
19

20   deemed, by any person with a sense of fundamental fairness, to not be a "sham." The Defendant’s

21   success in obtaining a Sustained Yield Plan was a success based on extrinsic fraud,1 something
22
     no U.S. Supreme Court would ever countenance as anything but for what it is -- cheating and a
23
     sham.
24

25

26

27
     1
       Extrinsic fraud is the deprivation of a "fair opportunity fully to submit [one's] case." (Zastrow v. Zastrow
28   (1976) 61 Cal.App.3d 710, 716.)
     No. DR030070                                         - 17 -
      ____________________________________________________________________________________________
                                S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1           For the foregoing reasons, the Defendant cannot avail itself of Noerr-Pennington as a bar
 2
     to this litigation.
 3
                      2.     The Litigation Privilege of Civil Code Section 47 Does Not Apply.
 4
             The principal purpose of the litigation privilege of Civil Code section 47(b) is to the
 5

 6
     protect litigants and witnesses from derivative court actions based on bias or false evidence that

 7   arises during trial:

 8                    "The principal purpose of section 47(2) is to afford litigants and
                      witnesses [citation] the utmost freedom of access to the courts
 9
                      without fear for being harassed subsequently by derivative tort
10                    actions. . . . . Finally, in immunizing participants from liability for
                      torts arising from communications made during judicial
11                    proceedings, the law places upon litigants the burden of
                      exposing during trial the bias of witnesses and the falsity of
12
                      evidence, thereby enhancing the finality of judgments and avoiding
13                    an unending roundelay of litigation, an evil far worse than an
                      occasional unfair result [citations]."
14
     (Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214, emphasis added.)
15

16           In order to invoke Civil Code section 47(b), a defendant must show that the privilege

17   applies to "any communication" made in judicial or quasi-judicial proceedings. The California
18
     Supreme Court in Silberg said, “The usual formulation is that the privilege applies to any
19
     communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
20
     participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some
21
     connection or logical relation to the action." (Id. at p. 212.) Here, the Defendant cannot get past
22

23   even the first of these requirements.

24           A quasi-judicial proceeding is one requiring hearings based on the presentation of
25
     evidentiary facts and decision of the issue by the application of rules of law to the ascertained
26

27

28
     No. DR030070                              - 18 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   facts. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 866 discussing hearings and
 2
     evidentiary facts; cited with approval, Pettus v. Cole (1996) 49 Cal.App.4th 402, 437.)
 3
             The foregoing authorities are enough to demolish the Defendant’s attempt to invoke Civil
 4
                                              s
     Code section 47(b) as to all of Plaintiff' causes of action. Defendants do not and cannot provide
 5

 6
     authority or basis for the proposition that the CEQA process is adjudicatory. In the same manner

 7   that the court in Schlegel v. Bebout, 841 F.2d 937, 944 (9th Cir. 1988) determined that an

 8   administrative body did not enjoy immunity because their actions “were not done in order to
 9
     prepare for an adversarial proceeding, but rather were done to ensure compliance with their
10
     procedures. . . . Their actions are not quasi-judicial in nature because they are regulatory, not
11
     adversarial,” the CEQA process is regulatory and does not include such safeguards as the power
12

13   to issue subpoenas, liability for perjury, and the applicability of the rules of evidence.

14           As for the second through seventh causes of action, all are based on the Defendant’s
15
     concealment of information from any and all proceedings, and hence could not possibly involve
16
     any quasi-judicial proceeding.1 And a for the first cause of action, it is based on the Defendant’s
17

18

19   1
      Even if the Defendant’s act of concealing information had pertained to a quasi-judicial proceeding, Civil
     Code § 47(b) could not possibly apply for the following two reasons:
20
              First, all six of these causes of action are based on Pacific Lumber's conduct in failing to transmit
21   the final Jordan Creek report to CDF Sacramento, there being no allegation this Jordan Creek
     communication was defective; conduct is clearly unprotected by Civil Code § 47(b). (Kimmel v. Goland
22   (1990) 51 Cal.3d 202 (holding that the litigation privilege of section 47(b) was inapplicable to the
     unconsented recording (and subsequent transcription) of telephone conversations); accord, Rubin v.
23   Green (1993) 4 Cal.4th 1187, 1195 (referring to the Kimmel facts as "noncommunicative conduct").

24             Second, these six causes of action are based on extrinsic fraud, to wit, Pacific Lumber's
     fraudulent concealment so as to prevent the Director of CDF from recirculating the EIR with the corrective
25   Jordan Creek information "to the public" for the purpose of depriving the public of their legal right to "make
     their case" as to the bearing of this new information on the amount of harvesting to be allowed under
26   Pacific Lumber's proposed sustained yield plan; extrinsic fraud is specifically excluded from Civil Code §
     47(b). (Silberg v. Anderson, supra, 50 Cal.3d at p. 214 emphasis added ("To allow a litigant to attack the
27   integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed
     situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system.").
28
     No. DR030070                              - 19 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   false report provided during an investigation by the Water Quality Board, which is authorized to
 2
     demand such a report under Water Code section 13267(b). Therefore, the act of providing this
 3
     false report occurred during an investigation. It did not occur during any proceeding involving a
 4
     hearing or evidence or witnesses. Hence, Civil Code section 47(b) cannot possibly apply to the
 5

 6
     first cause of action.1

 7           The Defendant engages in much fulminating to bring our case within the four-part test of

 8   Silberg, supra. Nowhere however--not even once--does the Defendant provide this court with
 9
     any authority that any of the three regulatory regimes implicated by the complaint are deemed
10
     quasi-judicial. The Defendant does not cite a single case showing that section 47(b) is applicable
11
     to the CEQA regime. Nor does the Defendant cite a single case showing section 47(b) is
12

13                                                       s
     applicable to a regional water quality control board' investigation regime. Finally, the Defendant

14                                                                              berg-Nejedly Forest
     fails to cite a single case that shows section 47(b) is applicable to the Z'
15
     Practice Act regime.2
16
             For the foregoing reasons, the Defendant’s reliance on the litigation privilege of Civil
17
     Code Section 47(b) defense fails.
18

19

20

21

22   1
       In People v. Sims (1982) 32 Cal.3d 468, 480, the Court held, in the analogous situation of whether the
     findings of an administrative agency are the result of a judicial like-adversary proceeding for purposes of
23   collateral estoppel, that the characteristics to look for included the following: (1) testimony submitted under
     oath, (2) the right of a party to examine and cross-examine witnesses, (3) a referee available to subpoena
24   witnesses, and (4) the maintaining of a verbatim record. Not one of theses characteristics were part of the
     CDF proceeding or any other administrative agency involved in our case against Pacific Lumber.
25
     2
       The untenability of the Defendant’s contention that this lawsuit involves a quasi-judicial proceeding is
26   further shown by the following: A computer search on Westlaw based on inputting "Civil Code" & "47(b)" &
     "Public Resources Code" (which contains CEQA and the Forest Practices Act) for the "California Official
27   Reports" data base yields no hits. A similar search based on inputting "Civil Code" & "(47(b)" & "CEQA"
     yields no hits. And a similar search based on inputting "Civil Code" & "47(b)" & "Water Code" yields no
28   hits.
     No. DR030070                                      - 20 -
      ____________________________________________________________________________________________
                               S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1          D.      THE COMPLAINT IS JURISDICTIONALLY SUFFICIENT.
 2
            The Defendant’s third main argument is that the first amended complaint is jurisdic-
 3
                                                                       s
     tionally flawed for three reasons: (1) for failure to exhaust CEQA' administrative remedies; (2)
 4
     for failure to name state and federal agencies as indispensable parties; and (3) for failure of
 5

 6
     standing regarding the breach of escrow instructions. None of these arguments have merit.

 7                  1.      Plaintiff Did Not Fail to Exhaust Administrative Remedies.

 8          Section 21177 of CEQA, which the Legislature has stated was designed to codify the
 9
     exhaustion of remedies doctrine (Endangered Habitats League, Inc. v. State Water Resources
10
                                                                           s
     Control Board et al. (1997) 63 Cal.App.4th 227, 238 [holding that CEQA' exhaustion of
11
     remedies requirement was not applicable because the government "provided no opportunity to be
12

13                              second tier'
     heard on the question of a '           EIR review], specifically provides that it does not apply to

14   situations where the public had no opportunity to raise objections:
15
                    "(e) This section does not apply to any alleged grounds for
16                  noncompliance with this division for which there was no public
                    hearing or other opportunity for members of the public to raise
17                  those objections orally or in writing prior to the approval of the
                    project, or if the public agency failed to give the notice required by
18
                    law."
19
     (Public Resources Code, Section 21177, emphasis added.)
20
            The complaint shows that the Defendant submitted false information on November 18,
21
     1998 for Final EIR inclusion (FAC ¶ 29); that the Final EIR was published including that false
22

23   information (FAC ¶ 50), and that the corrective information was significant new information

24   (FAC ¶ 48) although known by the Defendant on January 22, 1999 (FAC ¶ 30), was concealed
25
     from CDF Sacramento through certification of the Final EIR on February 23, 1999 (FAC ¶ 50).
26

27

28
     No. DR030070                              - 21 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   This caused the Director of CDF to fail in his duty to recirculate the EIR with the added
 2
     information (FAC ¶ 51), and thus deprived the public of a fair opportunity to comment on the
 3
     recirculated Final EIS/EIR. (FAC ¶ 51.)
 4
             Since the complaint shows the public had no opportunity to even know the November 18,
 5

 6
     1998 information was false prior to EIR certification and that this false information remained in

 7   the administrative record (FAC ¶ 37), the public was clearly deprived of an opportunity to raise

 8   any objections.
 9
             For the foregoing reasons, the Defendant cannot claim the People have failed to exhaust
10
     other remedies.
11
             2.      There is No Failure to Join Because Complete Relief Can be Rendered
12
                     Against the Defendant Alone.
13
             Code of Civil Procedure section 389(a) provides that a person must be joined in an action
14
     if “(1) in his absence complete relief cannot be accorded among those already parties, or (2) he
15

16
     claims an interest relating to the subject of the action and is so situated that the disposition of the

17   action in his absence may. . . impair or impede his ability to protect his interest, or . . . leave any

18   of the persons already parties subject to . . . inconsistent obligations.” (Ibid.) The determination
19
     of whether a defendant should be joined under this section is based on non-jurisdictional
20
     practical considerations of "equity and . . . good conscience." (County of San Joaquin v. State
21
     Water Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1151-1153.) In government permit
22

23   cases, an absent party may not be considered indispensable where parties already before the court

24                                        s                                                       n
     adequately represent the absent party' ability to protect his or her interests. (Citizens Ass' for
25
     Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 161.)
26

27

28
     No. DR030070                              - 22 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1           Here, the complaint seeks civil penalties, restitution, and injunctive relief which can be
 2
     completely rendered against the Defendant alone. There is absolutely no need for any
 3
     government agency to be joined in order for this court (1) to assess a civil penalty against the
 4
     Defendant alone; (2) to order the Defendant not to reduce by 40 million board its annual timber
 5

 6
     harvesting, or (3) to order the Defendant to write out a check to the State of California and the

 7   United States for the amount of judgment rendered.

 8           The cases cited by the Defendant are inapplicable. In the case of County of San Joaquin v.
 9
     State Water Resources Control Board, supra, at p. 1147, the plaintiff sought relief which would
10
     "undoubtedly injure" the U.S. agency, a situation totally unlike the case at bar. Here, the relief
11
     sought provides restitution to the government for fraudulent failure of partial consideration. The
12

13   case of Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 569-

14   570, is also inapplicable because its plaintiff was seeking to set aside a project governed by
15
     CEQA. Here the Plaintiff is not trying to set aside the Headwaters Forest project or the EIR.
16
             The Defendant cites Dawvendewa v. Salt River Project Agric. Improvement & Power
17
     Dist., 276 F.3d 1150 (9th Cir.) for the proposition that a party to an action is an indispensable
18
     party to an action "seeking to attack or invalidate the contract." Dawavendewa is irrelevant for
19

20   two reasons. First, unlike our case, Dawavendewa involved an attempt to invalidate the contract

21   (a lease requiring preferential hiring of Navajos). In the instant case the action seeks to affirm the
22
     contract by seeking restitution based on fraudulent inducement. 1 In the case at bar, nowhere in
23

24

25

26

     1
27    It is a familiar rule that where a defendant makes a promise without intending to perform, and later fails
     or refuses to perform, he is guilty of the tort of fraud as well as breach of contract, remedies which a
28   plaintiff may elect between. (See, e.g., Karapetian v. Carolan (1948) 83 Cal.App.2d 344, 346.)
     No. DR030070                                          - 23 -
     ____________________________________________________________________________________________
                                 S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   the complaint is there a request for return of the entire $300 million consideration. Second, the
 2
     court in Dawavendewa based its reasoning on three factors, none of which are present here.1
 3
             For the foregoing reasons, the argument of indispensable parties is inapplicable here.
 4
             3.      Under B&P 17203 a District Attorney Has Authority to Obtain Restitution
 5                   in a UCL Action on Behalf of Victims Both Known and Unknown.
 6
             Business and Professions Code section 17203 provides that a court may make such orders
 7
     or judgments "as may be necessary to restore to any person in interest any money or property
 8
     . . . which may have been acquired by means of such unfair competition." This section has been
 9

10   construed to give a District Attorney authority to seek restitution on behalf of victims not yet

11   known nor represented. (People v. Thomas Shelton Powers, M.D., Inc. (1992) 2 Cal.App.4th 330
12
     [holding the trial court had power, in a District Attorney-filed case, to order disgorgement of a
13
                        s
     developer defendant' profits and restitution].) In Powers the court said,
14
                     "Given that the wrongdoer should not retain the profits, the
15
                     question is to determine to whom the profits should go. Where it
16                   is possible to refund a direct victim, the victim will obtain that
                     refund. Where it is not possible, the theory of fluid recovery
17                   permits an award of the funds to an interested third party. The
                     cases did not turn on the ability to name specific persons as
18
                     victims, but on the equities of preventing the defendant from
19
                     benefiting from the illegal transaction and of reversing the harm of
                     the wrongful act to the greatest extent possible. We see no reason
20                   to reach a different result here."

21   (Id. at p. 343, emphasis added.)
22

23

24
     1
        These three factors were: (1) that complete relief could not be accorded, shown by plaintiff's being
25   unable, without defendant's involvement, to obtain the employment he sought (unlike our case where the
     U.S. and State of California merely have to accept the money ordered by this Court); (2) the defendant's
26   legally protected interest would be impaired (unlike the U.S. or State of California's interests in our case,
     for they get to save more trees and get money back without any affirmative obligation to act), and (3) there
27   was a substantial risk of inconsistent or multiple obligations by virtue of defendants' legally protected
     interests, which in no way exists in our case.
28
     No. DR030070                              - 24 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1           Once again, the Defendant fails to cite the Powers case despite the fact it is directly on
 2
     point. Here, just as in Powers, the District Attorney representing the People is the plaintiff.
 3
             The Defendant does cite two court of appeal cases and two Supreme Court cases.
 4
     However, none of those cases has a District Attorney as the plaintiff. These cases are irrelevant.
 5

 6
             Finally, the two Supreme Court cases do not support the Defendant’s position.1

 7           The Defendant is accused of fraudulently misappropriating $300 million from the United

 8   States, on behalf of itself and the State of California. (FAC ¶¶ 38, 75, 78, 79.) Restitution
 9
     obtained for these parties for the Defendant’s fraudulent inducement provides the Plaintiff with
10
     standing to bring this action.
11
             D.      THE ALLEGED CONDUCT IS AN UNFAIR BUSINESS PRACTICE.
12

13           The Defendant argues, fourthly, that the alleged conduct in the complaint is not an unfair

14   business practice in that (1) in the seventh cause of action does not allege a breach by Pacific
15
                                                                    s
     Lumber of the Headwaters Escrow Instruction; (2) Pacific Lumber' petitioning activity is not a
16
     business practice; and (3) a scientific falsity cannot be fraud. All of these arguments are specious.
17
                     1.       The Seventh Cause of Action is for a Fraudulent Business Practice,
18                            Not a Breach of Contract.
19

20

21

22   1
       In the first, Kraus v. Trinity Mgmt. Serv., Inc. (2000) 23 Cal.4th 116, the court defined an order for
     "restitution" as one "compelling a UCL defendant to return money obtained through an unfair business
23   practice to those persons in interest from whom the property was taken," (Id. at 126-127, emphasis
     added).
24
     The second case cited by Pacific Lumber is Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
25   1134), which by its own terms (1) applies only to an individual private action, and (2) applies only to
     "nonrestitutionary disgorgement" (Id. at p. 1148, FN 6 (Our discussion in this case is limited to individual
26   private actions brought under the UCL."); Id. at p. 1152, emphasis added ("We hold that
     nonrestitutionary disgorgement of profits is not an available remedy in an individual action under the
27   UCL.")

28
     No. DR030070                              - 25 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1          A fraudulent business practice under Business and Professions Code section 17200 only
 2
     requires a showing members of the public are likely to be deceived. (Bank of the West v.
 3
     Superior Court (Industrial Indemnity Co.) (1992) 2 Cal.4th 1254, 1266 ("In drafting the act
 4
     [UCL] the Legislature deliberately traded the attributes of tort law for speed and administrative
 5

 6
     simplicity."); Saunders v. Superior Court (Cal. Reporting Alliance et al.) 27 Cal.App.4th 832,

 7          Fraudulent,' used in the statute, . . . only requires a showing members of the public '
     839 (" '           as                                                                        are

 8                         ");
     likely to be deceived.' South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72
 9
     Cal.App.4th 861, 877.)
10
            The seventh cause of action in the complaint alleges the Defendant violated a "duty to not
11
     take" the $300 million (FAC ¶ 76) as a result of noncompliance with an escrow condition (Ibid.)
12

13   induced (FAC ¶ 24) by fraud prior to (FAC ¶¶ 74, 60-62) the February 28, 1999 date of escrow

14   instructions (FAC ¶ 75), which was obviously "likely to mislead the members of the public." The
15
     members of the public are the citizens of the United States and the State of California, which
16
     paid the $300 million. The seventh cause of action is thus not for rescission or breach of contract,
17
     but for a fraudulent business practice. Contrary to the assertions of the Defendant, there is no
18
     breach of contract defense applicable here.
19

20          2.      The Defendant’s Acts Constituted a Business Practice Subject to the
                    Provisions of the Unfair Competition Law.
21
            An unlawful business practice under Business and Professions Code section 17200 is
22

23   "anything that can properly be called a business practice and that at the same time is forbidden by

24   law." (People v. McKale (1979) 25 Cal.3d 626, 632.) It includes misrepresentations made to
25
     government. (See Wise v. Pacific Gas and Electric Company (1999) 77 Cal.App.4th 287, 292
26

27

28
     No. DR030070                              - 26 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   [impliedly approving as actionable under the UCL "misrepresentations, misleading statements
 2
     and acts of concealment made to" the PUC].)
 3
            The only case cited by the Defendant in support of its "no business practice argument" is
 4
     Blank v. Kirwin, supra, 39 Cal. 3d 311, 329 where the specific wrongful activity alleged was a
 5

 6
     conspiracy to influence government action toward the legalization of poker clubs. Even regarding

 7   that activity, the Blank Court issued a qualification: "But even if it could" [be called a business

 8   practice], plaintiff does not and cannot effectively state that it is forbidden by law." (Ibid.)
 9
            The conduct by the Defendant is a business practice and falls under the provisions of the
10
     Unfair Competition Law.
11
            3.      A Fraudulent Business Practice Under the UCL Includes Scientific
12
                    Assertions That are Capable of Being Shown to be False in Court.
13
            A fraudulent business practice under Business and Professions Code section 17200,
14
     includes "scientific" assertions that are capable of being shown to be false in court (People v.
15

16
     McKale, supra, 25 Cal.3d at 632, emphasis added (Actionable is "anything that can properly be

17   called a business practice and that at the same time is forbidden by law"); Consumer Justice

18   Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595 [impliedly approving as
19
     actionable under the UCL an allegation that it was "false" (Id. at p. 599) for the defendant to have
20
     claimed that the Grobust pill is "safe" and "effective" as a breast enlarger (Id. at p. 605)]; and
21
     Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, [impliedly approving as
22

23   actionable under the UCL the scientific issue of whether, in the case of amalgam dental fillings

24   containing mercury, there is "no observable effect assuming exposure at 1,000 times the level in
25
     question for substances know to the state to cause reproductive toxicity" (Id. at pp. 472-473)].)
26

27

28
     No. DR030070                              - 27 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1           In support of its argument that a scientific falsity cannot be fraud,1 the Defendant cites
 2
     two federal cases under the False Claims Act. In Chen-Cheng Wang ex rel United States v. FMC
 3
     Corp. 975 F.2d 1412, 1421 (9th Cir. 1992), the court indicated that common failings of engineers
 4
     are not actionable under the False Claims Act. The False Claims Act requires "knowing
 5

 6
     presentation of what is known to be false." Examples of the nature of those claims in Chen-

 7   Cheng Wang were "an allegedly faulty calculation" and an "engineer’s very low level of

 8   understanding” (Id. at p. 1420.) Thus, the claims in Chen-Cheng Wang were inherently
 9
     unamenable to showing a lie. However, in the present case, a statement that "only 15%" of
10
     landslides occurred on "recently harvested areas" is easily susceptible of being shown to be
11
     intentionally or recklessly false.
12

13           In the second case cited, United States v. Regents of the Univ. of Cal. (912 F. Supp. 868,

14   888), the court cited Wang in dicta, but its holding was that there was a lack of proof: "In any
15
                 s                   s
     event, Milam' claim that Tofilon' practices deviated from scientific norms are unsupported by
16
     any expert testimony." (Id. at p. 886.) This implies, of course, that expert testimony could have
17
     saved the day and that the scientific issues were justiciable.
18
             In conclusion, since it is obvious that the information provided by the Defendant can
19

20   easily be determined to be true or false in court (far more easily than whether a pill is "safe" or

21   "effective" as a breast enlarger, and far more easily than whether there is "an observable effect"
22
     physiologically from dental mercury "assuming exposure at 1,000 times"), the Defendant’s
23
     argument that a scientific falsity cannot be fraud is meritless.
24

25

26
     1
       The Defendant , while making this argument, appears to be conceding the fact that a scientific falsity can
27   be unlawful and can be unfair, for it fails to mention that throughout the complaint it is alleged that
     providing and concealing false information as to Jordan Creek landslides was, in addition to being a
28   "fraudulent" business practice, also an "unlawful" business practice and an "unfair" business practice.
     No. DR030070                                        - 28 -
      ____________________________________________________________________________________________
                              S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER
 1   VII.   CONCLUSION
 2
            Based on the foregoing Points, Authorities, and Argument, the Defendant’s demurrer
 3
     should be overruled.
 4

 5

 6
     Dated: July 16, 2003

 7                                                     Respectfully submitted,
                                                       Paul V. Gallegos
 8                                                     District Attorney, County of Humboldt
 9

10
                                                By:   _________________________________
11                                                     Timothy O. Stoen
                                                       Assistant District Attorney
12
                                                       Attorneys for Plaintiff
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
     No. DR030070                              - 29 -
     ____________________________________________________________________________________________
                          S
     PEOPLE vs. PL: PEOPLE' MEMORANDUM IN OPPOSITION TO DEMURRER

				
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