Richard L. Freeborn, Judge
SUPERIOR COURT OF THE STATE OF
CALIFORNIA
IN AND FOR THE COUNTY OF HUMBOLDT
THE PEOPLE OF THE STATE OF ) Case Number; DR030070
CALIFORNIA, )
)
)
Plaintiff, )
)
Vs. )
THE PACIFIC LUMBER COMPANY ) ORDER SUSTAINING DEMURRER
SCOTIA PACIFIC HOLDING COMPANY, ) WITHOUT LEAVE TO AMEND
SALMON CREEK CORPORATION, AND )
Does 1 through 1 0., )
)
Defendants. )
_______________________________ )
PALCO has demurred to Plaintiffs Second Amended Complaint (SAC). (I have adopted the collective term "PALCO", as used in previous pleadings, to refer to all defendants.) The matter was argued and submitted on February 16, 2005. PALCO's Motion to Strike a request for a jury was denied at the conclusion of the hearing. The Court deemed Plaintiffs request as being for an advisory jury, which is within the power of the Court
I have read and considered the pleadings and arguments of both sides, and as requested, have taken judicial notice of the Statement of Decision in EPIC vs- CDF et al., Humboldt County Superior Court Case No. CV990445. In deciding a challenge to a complaint by a demurrer, the court may consider all previous pleadings and allegations of he parties. I have also taken a fresh look at the issues presented without being bound by previous rulings in the case. A trial judge is permitted to reconsider intermediate rulings prior to final judgment, and an order overruling or sustaining a demurrer is not res judicata, 5 Witkin Cal. Proc. Pleading, Section 936, and citations. However, except to the extent that this ruling may differ from the reasoning and conclusions of the Honorable Christopher G. Wilson, my judicial predecessor concerning this case, I accept and adopt his reasoning and wisdom in his other conclusions.
BACKGROUND
The genesis of this case lies in the Headwaters Agreement. As previously noted by this court, PALCO transferred a significant private holding of ancient redwood forest to the State and Federal Governments in exchange for additional property, over 300 million dollars and other consideration, including substantial funds to local government. A key aspect of the consideration for PALCO was to obtain some degree of predictability in its ability to manage and harvest its resources in light of evolving environmental concerns for timber harvest practices and enhanced political and public involvement resulting in substantial collateral costs. To this end, an important aspect of the Headwaters Agreement for all parties was the development of a Sustained Yield Plan (SYP)/Habitat Conservation Plan (HCP) covering the extensive private holdings of PALCO. Predictability to PALCO in its use and management of its resources would be balanced with the public's interest in management of those resources in an environmentally acceptable fashion. Individual Timber Harvest Plans (THPs) would then rely upon information developed in the SYP process and the THPs would fit within the framework set forth by the SYP. Development of the SYP is an extensive and costly multi-agency process with primary responsibility lying with the California Department of Forestry (CDF) the state's lead agency and the U.S. Fish and Wildlife Service concerning the federal interest therein. The process requires the SYP be developed and submitted to the Director of the CDF who then evaluates its sufficiency prior to release for agency and public review. Comment and response are contemplated ultimately resulting in the approval of a final SYP by the Director.
As well detailed in the Statement of Decision in EPIC (supra) this was a somewhat messy process and voluminous as well, running to some 80,000 pages of administrative record. (Epic, Statement of Decision pg. 15). Clearly, there was an abundance of public and agency input in the process, whatever one might think of the conclusions reached by the public bodies making the final decisions,
PLAINTIFF'S CONTENTIONS
As with the original Complaint (OC) and the First Amended Complaint (FAG), the essence of Plaintiff's suit, stated in the SAC, remains that Defendants allegedly committed fraud by submitting false information in acquiring a Sustained Yield Plan (SYP), and intentionally concealed that false information from the appropriate authorities until the Plan was final, resulting in approval of timber harvesting rates beyond environmentally acceptable levels and without benefit of public scrutiny and comment.
Plaintiff alleges that in November 1998, the Regional Water Quality Control Board (Water Quality), because of concerns it had about logging related impacts, "ordered reports" for certain additional information concerning the effects of logging on five watersheds within the area in question. Plaintiff further alleges that PALCO also knew that Water Quality ordered these reports in response to the severe logging-related impacts that had been observed by government agents over the preceding years. SAC p.8, Plaintiff claims that in response to the possible negative effect of such impacts, PALCO conceived of and executed a fraudulent plot to cover up such negative matters. It allegedly did this by filing a false report on November 18, 1998 (two days after the close of the public comment period); and, on January 22, 1999, delivering a final "truthful report" to CDF and Water Quality (two days "after the final Environmental Impact Statement/ Environmental Impact Report (EIS/EIR) was published,) , and by delivering same to "local" offices of CDF and Water Quality. Plaintiff alleges this new report should have been filed in the "...government offices specifically designated to review public comments and make a final determination on the permits"; and, that Defendant thereafter failed to call such new report to the attention of appropriate authorities. It is alleged that on February 25, 1999, CDF issued findings for the SYP adopting a Long-Term Sustained Yield (LTSY) projection known as SYP Alternative 25(a). Plaintiff has alleged in all three of its complaints (OC, FAC and SAC) that thereafter PALCO, without calling the attention of the Director of CDF to the alleged "truthful report", "...lobbied"
CDF for a greater allowance of annual board feet of timber, and on March 1, 1999, CDF adopted a different LTSY, known as SYP Alternative 25, which permitted a greater annual timber harvest.
Plaintiff alleges that the foregoing constitutes wrongful conduct under California's Unfair Competition Law (UCL) (Business and Professions Code Section 17200 et seq.) and seeks civil penalties pursuant to B & P Code Section 17206, of $2,500 for each tree harvested since March 1, 1999, in excess of SYP Alternative 25(a).
DEFENDANT'S DEMURRER
Defendant asserts that the District Attorney cannot state a cause of action under the UCL, and alleges three areas of alleged deficiencies in the Second Amended Complaint:
First: Plaintiff's claims are barred by California's "Litigation Privilege", California Civil Code Section 47)
Second: The Second Amended Complaint Violates Safeguards for Constitutionally Protected Speech (The "Noerr-Pennington Doctrine')
Third: The CEQA Process Was Not undermined by PALCO's Alleged Actions
DISCUSSION
FIRST: Defendant claims that Plaintiff's claims are barred by California Civil Code Section 47, the "Litigation Privilege".
As concluded by Judge Wilson in his RULING RE DEMURRER TO THE FIRST AMENDED COMPLAINT (hereafter RULING) and the authorities cited, filed herein April 30, 2004, the Litigation Privilege does apply to the facts of this case, I adopt his reasoning and conclusion so far as the application of Section 47 to the review and SYP process here involved. In essence, Section 47 provides a privilege to any litigant or other authorized person, for a communication made in any judicial or quasi-judicial proceeding with a record subject to review, if the communication seeks to achieve the objects of the litigation, and has some connection or logical relation to the action or proceeding. The purpose of the privilege is to afford persons the utmost freedom of access to the courts and other official proceedings authorized by law, without fear of being harassed subsequently by derivative tort actions. The communication in the course of a proceeding subject to Civil Code Section 47 may be "fraudulent" or 'perjured' but it is absolutely privileged and does not provide a basis for avoiding the finality of the decision made in the process itself. The law favors free communication in the belief that full and fair discussion will lead to the ascertainment of a correct result. See generally: Silbert -vs- Anderson (1990) 50 Cal.3d 205.
I respectfully differ with Judge Wilson's conclusion that despite the privilege afforded by Civil Code Section 47, as above discussed, Plaintiff, should be permitted to plead and try to prove extrinsic fraud.
Extrinsic fraud is an equitable doctrine that may be used as a direct attack upon a judgment or used defensively to defeat the finality of a court judgment where the subject defendant was prevented from having a fair adversary hearing and has been deprived of an opportunity to present his claim or defense to the court. Extrinsic fraud principally applies where a party has been "denied his day in court" by some wrongful act of another party. It is expressly a narrow equitable doctrine because of the general spirit of the law favoring finality of judgments, and disfavoring an attack on the integrity of evidence after the proceedings have concluded. See: RULING RE DEMURRER TO THE FIRST AMENDED COMPLAINT (RULING), pp.17-19.
Here we are not dealing with "...a court judgment..", but rather a sustained yield plan (SYP) adopted through an administrative proceeding. Does the extrinsic fraud doctrine used as an attack or defensively against a final judgment in judicial proceedings apply to a SYP adopted through administrative proceedings?
Assuming arguendo that extrinsic fraud might apply to the facts of this case as concluded in the RULING, supra, do the facts set forth in the OC, FAC and SAC warrant its application? I conclude that on their face they do not.
Starting at page 8 of the SAC, Plaintiff sets out a factual summary. The first two paragraphs are:
1. On September 28, 1996 the Headwaters Agreement was signed by or on behalf of PALCO, MAXXAM, INC., The UNITED STATES DEPARTMENT OF THE INTERIOR, and THE CALIFORNIA RESOURCES AGENCY.
2. On February 27, 1998, the parties as well as the NATIONAL MARINE FISHERIES SERVICE, signed a "follow-up agreement" whereby all parties agreed that the CDF and U.S. Fish and Wildlife Service would make available for review and comment a draft Environmental Impact Statement/Environmental Impact Report ("EIS/EIR") on PALCO'S Sustained Yield Plan "pursuant' to the California Environmental Quality Act (CEQA).
From the outset, and even included in the "follow-up agreement" of February 27, 1998, as alleged in the 0C, is an acknowledgement of the importance of the Public's "mass wasting" landslide concerns, the gravamen of Plaintiffs action here.
The concern about "mass wasting" landslides and sedimentation were expressly known and of concern to all parties, certainly including Water Quality, throughout the process which included a draft EIR, Public Comment Period, and follow up requests for information by affected agencies.
There followed a number of studies and reports thereon. it seems likely that a significant part of the 80,000 page administrative transcript of the process mentioned in Epic supra, would have been involved with mass wasting, sedimentation and related factors.
As alleged in the 0C, PALCO retained an independent consultant, Or. William Weaver, a principal of Pacific Watershed Associates (PWA). During the course of the
comment period he submitted various studies and reports. Water Quality requested Dr. Leslie Reid, a noted scientist concerning sediment source investigation and reduction, to do a study of Bear Creek watershed. Her reports expressed concerns based on her study of Bear Creek watershed that she had found excessive landslides and sedimentation resulting from logging activity. Based on her information and conclusions she contended that the results would apply across the several watersheds under study. She contended that logging would have to be significantly limited and widely dispersed to avoid future problems and to permit restoration of previously logged areas. Her reports were apparently at significant variance with the reports of Dr. Weaver, and would in effect lead to a significant reduction in the amount of logging that could be conducted without adverse impacts.
The end of the public comment period was coming near. In the OC, Plaintiff alleged that the close of the Public Comment Period for submission of information to be filed to become a part of the final EIR was November 18, 1998. In the FAC and SAC it is alleged that November 18, 1998 is two days AFTER the close of such period. I will assume that November 16, 1998 was the closure date, per Plaintiff's correction, Plaintiff asserts that near the time for closure of the public comment period, PALCO conceived of a deceitful plot to mislead the agencies involved, particularly about the negative impact of Dr. Reid's report. However, it is notable that at this late stage of the proceedings, the chain of events leading to the filing of the allegedly false report, the so-called "Jordan Creek" report, was NOT initiated by PALCO, but by Water Quality.
At page 18 of the OC, Plaintiff alleges that "On October 8, 1998, Mr. Lee Michlin, Executive Officer of Water Quality, notified Tom Herman of PL that based on Table 5 of the Sediment Budgets and Inventory for Bear Creek and NF Elk River, the landslide rate on recently harvested slopes less than 15 years old is 9.6 for Bear and 13.0 for Elk when compared to areas harvested greater than 15 years old. Water Quality had found that the 'increase in rate of debris landslides is due to silvicultural activities' which 'indicates a strong connection between the increased timber harvesting and increased discharge of sediment" This is a very specific averment, as opposed to later allegations in the FAG and SAC that are general to the point of meaninglessness. There is no suggestion or allegation that Mr. Michlin was a tool of PALCO or corruptly involved in some plot to alter the outcome of the process.
As alleged in the OC p. 19, On November 12, 1998, PALCO submitted a responsive letter to Mr. Michlin of Water Quality contending his concerns were not well founded and gave as an example a "draft Jordan Creek report" that contained data leading to an opposite conclusion. Again according to the 0C, on November 18, 1998 ( which as above discussed was two days after the last day for filing before closure of the Public Comment Period) PALCO followed up by submitting to the same Mr, Michlin a document dated November 10, 1998, containing representations by its independent consultant, Dr. Weaver of PWA, and indicating it was a response to Dr. Leslie Reid's negative comments of PWA's previous studies. This response it referred to as the "draft Jordan Creek report", and it is alleged that it neutralized the findings of Dr. Reid that her Bear Creek study could be generalized across all the watersheds under consideration. Again, these allegations are quite specific, totally unlike the generalized allegations in the FAC and SAC that refer to submissions to "COP ( SAC p.4), or "submitted material and significant, false information regarding Jordan Creek...for the purpose of said false information being used to defraud the agencies and the public..." SAC p10. No mention is made in the SAC as to which agency of office this material was "submitted". Also, in the SAC Plaintiff alleges that PALCO "...submitted the 'incorrect' Jordan Creek draft to government agents..." (SAC 14).
Where was the false report lodged or Med?
It is noted that in the OC Plaintiff alleges that the draft Jordan Creek
report was "submitted" to Mr. Michlin of Water Quality (OC page 19). In the FAC, it does not refute the submission to Mr. Michlin, but alleges it was "submitted to the government" in letter form (FAC p.11). In the SAC, Plaintiff alleges Defendant "...submitted fraudulent and false data to the California Department of Forestry..." it does not say where or with whom SAC p.4. At pages 9 and 10 of the SAC Plaintiff alleges that Defendant "submitted" the false report "for the purpose" of defrauding the agencies and the public, but again, it does not state where or with whom such report was filed. At page 14 of the SAC Plaintiff alleges that Defendant "...submitted the 'incorrect' Jordan Creek draft to government agents..."
Considering the factual averments of the three complaints the following appears likely: Mr, Michlin of Water Quality initiated the subject exchange of information and defendant responded to Mr. Michlin as the responsible officer of Water Quality. It would seem it was Water Quality, not Defendant, that caused the inclusion of the "draft Jordan Creek report" in the final EIR
But in any event, as Defendant has noted, the submission of the report after closure of the Public Comment period made it legally irrelevant, and it could have been disregarded by the agencies in charge, had they chosen to do so.
Plaintiff has claimed that the next stage in Defendant's scheme took place on January 22, 1999, after the final EIS/EIR was published. PALCO then allegedly prepared a final truthful report that was more consistent with the report of Dr. Reid. How was it delivered and to whom according to Plaintiff?
OC: "...by hand-delivering it to the resource manager of CDF in Fortuna... (p.21)
FAG: ",..delivering the corrected report...to local offices of CDF and to the Water Quality Control Board ..." (p.12)
Note: It is not alleged what office or officer of Water Quality was the recipient. Was it the same Mr. Michlin who had been the effective correspondent for the agencies concerning the subject at hand?SAC: "...delivering the correct report...to local offices of CDF and to the Water Quality Control Board..." (p.11)
Note: Again, it is not alleged what officer or officer of WQ was the Recipient.
In all three complaints it is in essence alleged that Defendant should have delivered the corrected report to the government offices specifically designated to review public comments and make a final determination on the permits, i.e. the Sacramento office of CDF. However, it appears that rightly or wrongly, Defendant likely had its correspondence on the subject with Water Quality, the agency that originated and initiated the exchange.
In its final allegations, Plaintiff asserts Defendant furthered its scheme by failing to notify the recipients of the January 22, 1999 report of its significance, making sure they delivered it to Sacramento, failing to call attention to authorities of the draft Jordan Creek report in the final EIR/EIS, lobbying for the Alternative 25, rather than 25a harvesting plan based on the Jordan Creek report as included, and thereafter logging in reliance thereon. However, if the PALCO'S initial communication of the Jordan Creek Report was immune pursuant to Civil Code Section 47, as I have held, these alleged commissions by inaction are meaningless.
It appears to me that as a matter of fact that we do not have such extrinsic fraud as would bar Defendant from claiming the privilege of Civil Code Section 47. What we do have is a lengthy period of study and reporting from various individuals and agencies, often a "dueling experts" game, that was followed by an agency decision. Was the agency decision in some objective sense, right or wrong? That is not the subject of this lawsuit.
The privilege provided by California Civil Code Section 47 provides a complete defense to Plaintiff's action.
SECOND: Defendant contends that The Second Amended Complaint violates safeguards for constitutionally protected speech (The "Noerr-Pennington Doctrine" --hereinafter referred to as "Noerr'.),
Plaintiff alleges that Defendant violated the UCL by submitting the allegedly false Jordan Creek report and thereafter "lobbying" for an amendment to the final SYP from alternative 25(a) (a restrictive plan) to 25 (a less restrictive plan), permitting Defendant to log more extensively than Plaintiff contends is warranted.
Defendant asserts that its submitted Jordan Creek report and subsequent lobbying is constitutionally protected by the Noerr.
What is the Noerr?
Noerr is a constitutional privilege based upon freedom of speech and the right of citizens to petition their government at all levels.
The First Amendment to the United States Constitution guarantees the right "to petition the Government for a redress of grievances." U.S. Constitution Amendment I, Clause 6. The Supreme Court has long recognized that for the Petition Clause to be a meaningful protection of the democratic process, citizens must be immune from some forms of liability for their efforts to persuade government officials to adopt policy or
perform their functions in a certain way. This judicially declared privilege based upon he U.S. Constitution had its origin in the antitrust laws. Kottle v. Northwest (1998) 146 F.3d.1056.
In Eastern RR Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127, the Court rejected antitrust liability stemming from an aggressive lobbying campaign by a railroad to persuade states to adopt legislation that would severely limit competition from truckers. The Court explained that "... in a representative democracy such as this ... the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives." Id. At 137. The Court then concluded that the Sherman Act did not apply to the railroads' advocacy of legislative action, notwithstanding their anticompetitive intent. Id. At 138.
The Court subsequently expanded the holding of Noerr to include activities aimed at the executive and judicial branches of government. United Mine Workers v. Pennington (1965) 381 U.S. 657 (executive); and California Motor Transport Co. v. Trucking Unlimited ,(1972) 404 U.S. 508 (judicial). The Court explained that "...the right to petition extends to all departments of the Government..." and therefore, "...the same philosophy governs the approach of citizens or groups of them to administrative agency (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government." California Motor Transp. supra.
The principal enunciated in the foregoing two paragraphs became commonly known as the "Noerr-Pennington Doctrine" in Kottle, supra, the Court held that "Given the sweep of the Noerr-Pennington doctrine, we have no difficulty in joining our sister circuits to conclude that a lobbying effort designed to influence a state administrative agency's decision ... is within the ambit of the doctrine."
On its face, Noerr applies to People v. PALCO.
Plaintiff has raised a question, and the earlier RULING considered, whether there is an exception, known as the "sham exception", to Noerr that applies in this case. I think not.
What is the "sham exception" to Noerr?
In Noerr, supra, the Court acknowledged that "... there may be situations in which a publicity campaign, ostensibly directed toward influencing government action, is a mere sham to cover what is actually nothing more than an attempt to interfere with the business relationships of a competitor."
In Kottle, supra, (p. 1060) it was noted that the "sham" exception to Noerr encompasses situations in which persons use the governmental process -- as opposed to the outcome of that process -- as an anticompetitive weapon. A classic example is the filing of frivolous objections to the license application of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay. A "sham" situation involves a defendant whose activities are not genuinely aimed at procuring favorable government action at all, not one who genuinely seeks to achieve his governmental result, but does so through improper means.
Did PALCO'S actions in the underlying administrative proceeding constitute a "sham?
A number of California cases have applied Noerr. The following is a representative sampling and their relationship to our case:
[In our case, Palco was directly trying to obtain an advantageous result from the CEQA process. So far as can be ascertained from the pleadings, Palco had no been seeking any advantage over a competitor because no competitor was involved.]
[There can be little doubt in our case that PALCO was attempting to secure governmental action in its favor. There is no suggestion that it was trying to frustrate some actual or speculative competitor.]
While not directly mentioned in the pleadings, one must consider the inception of the CEQA process in this case. The Headwaters Agreement was not some covert, dark . of night, operation instigated solely by PALCO. ft was a well publicized coming together of a number of interested parties with a wide divergence of interests in politics, business, ecology, flood control, revenue, employment, and other factors. The process was open to one and all, and the 80,000 page administrative record mentioned in EPIC , supra, attests to the extent to which many contributed to the record. This complex and extensive proceedings was not some fabrication of PALCO initiated as a "sham" to take advantage of others.
It is clear to me based on the foregoing authorities that the "sham exception" to Noerr has no application to PALCO'S position in the CEQA process.
There has been considerable discussion about whether Noerr should apply, or should be applied more "narrowly", to PALCO'S position in a quasi-adjudicatory proceedings before an administrative agency, rather than an openly political body such as the legislature. Should Noerr immunity be available to it? My review of the cited authorities such as Kottle, supra, and others, suggests that this would be a mistake.
There is authority that the "sham exception" is applied more narrowly in judicial proceedings, and in administrative proceedings where the body is acting in a quasi-judicial capacity in making findings of fact and where the action is evidenced by a record that is subject to review, such as by mandamus. (See generally, Kottle, supra.) But even in such instances, the immunity of Noerr applies if the whole thrust of the party's acts is to obtain a certain governmental action to its direct advantage, rather than the "sham" of using the governmental action to cause disadvantage to others.Taking the supposed "narrowing" of the sham exception to Noerr a step further, for purpose of discussion if one were to assume the "sham" might apply during the fact finding or open public portion of the CEQA process, and I do not, Plaintiff still cannot prevail.
After the close of the public period on November 16, 1998, the agencies considered the amassed material and on February 25, 1999, CDF issued findings for the SYP adopting a Long-Term Sustained Yield (LTSY) projection known as SYP Alternative 25(a), Plaintiff has not in any of its pleadings asserted that 25(a) was not a fair determination, warranted by the record. In other words, PALCO'S supposed deceit had gained it naught.
And then? PALCO LOBBIED to change the agency determination to SYP Alternative 25, which gave it a more extensive logging potential.
"... PL lobbies agencies..." OC p.24
... Pacific Lumber proceeded to aggressively lobby CDF and other government agencies ..." SAC p.13
"... Pacific Lumber thereafter lobbied CDF ..." SAC p.12
What is the significance of lobbying" in the Noerr context? "Misrepresentations are a fact of life in politics (cite) and lobbying is the sine qua non of democracy." Kottle, supra, p 1062.
After November 16, 1998 (closure of public input), and before February 25, 1999 (findings by CDF), that is: during the lobbying phase°, the context changed from one that might be arguably more adjudicatory in nature (to which the "sham exception" might apply) to one that was more openly political (to which the "sham exception" clearly does not apply.).
Plaintiff cannot state a cause of action because PALCO'S actions are constitutionally protected by Noerr.
THIRD: Defendant contends that the CEQA process was not undermined by PALCO's alleged actions.
Interestingly, Plaintiff has not responded directly to this part of Defendant's Demurrer. Plaintiff does not mention it in its OPPOSITION filed July 16, 2004, or in the SUPPLEMENTAL BRIEF IN OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT filed December 27, 2004. I will assume this is an innocent oversight in the "heat of battle" and will look at it independently.
As defendant points out in its Demurrer pp.14-16, the allegedly false report and the so called corrected report were both filed after the November 16, 1998 cut off date and CDF was therefore under no obligation to consider either of them. The adoption by CDF of SYP 25(a) [the restrictive plan) on February 25, 1000, suggests that CDF was well able to evaluate the mass of the record and make an independent conclusion that favored the lower harvesting limit. This occurred well after PALCO'S submission of either report. It was only later, after PALCO had availed itself of its constitutionally permitted lobbying activity that CDF reconsidered and adopted the less restrictive SW Plan 25.
Plaintiff alleges that CDF was deprived of the effect of the "corrected" or 'true" report, but if that was the case, Plaintiff fails to explain how CDF arrived at the initial SYP Plan 25(a) that of necessity reflected such information calling for a reduced scale of logging, more consistent with the "corrected" report.
While the Demurrer provides further reasons for its granting under this heading, I believe we need go no further.
Based on the facts shown by the several complaints, it does not appear that Plaintiff can state a sustainable cause of action, even with any likely amendment. Therefore, the Demurrer is sustained without leave to amend.
Defendant at page 17 of its Demurrer and Motion to Strike requests the Court to strike the District Attorney's Multiple UCL claims. This is moot in light of the sustaining of the Demurrer without leave to amend. Nevertheless, I shall address it.
California's Unfair Competition Law can be employed where there are any of three varieties of unfair competition, including acts or business practices that are "unlawful" or "unfair" or "fraudulent". Podolsky-vs-First Healthcare Corp, (1996) 50 Cal. App.4th 632. The UCL statute is also not confined to anticompetitive business practices, but is also directed toward the public's right to protection from such conduct. But the statute is directed at ongoing wrongful conduct. The "practice" requirement envisions something more than a single transaction. It contemplates a pattern of conduct, ongoing conduct, a pattern of behavior, or a course of conduct. Hewlett -vs- Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499.
in the present case, it appears that the alleged wrongful conduct is the advancing of the "draft Jordan Creek report". That is a single act in my estimation, assuming Plaintiff could meet its burden at trial of showing its wrongfulness. It is noteworthy that according to the pleadings, PALCO had submitted other reports from Dr. Weaver to which Plaintiff takes no exception. I therefore find that PALCO's "practice" was to submit reports that Plaintiff does not contend are wrongful, and that it is only in this single instance that Plaintiff objects. The attempt to allege other wrongdoing by alleging a series of contrived omissions is a stretch to get around that requirement of Hewlett, supra, for multiple wrongful acts to constitute a practice. The "practice" in question is the submission of reports in the CEQA process.
in the end, even if the action of PALCO was subject to the UCL, it nevertheless has a complete statutory defense with California Civil Code Section 47 and a defense under the free speech and petition provisions of the First Amendment to the U.S. Constitution as developed in the Noerr-Pennington Doctrine.
Defendant is allowed its costs of suit. Defendant's counsel shall serve and submit a suitable form of judgment.
Dated: June 12, 2005
Richard L. Freeborn, Judge
STATE OF CALIFORNIA, )
COUNTY OF HUMBOLDT ) SS. AFFIDAVIT OF SERVICE BY MAIL
I, LINDA GALOVlCH , say:
That I am a citizen of the United States, over 18 years of age, a resident of
the County of Humboldt, State of California, and not a party to the within
action; that my business address is Humboldt County Courthouse, Eureka,
California; that I served a true copy of the attached
ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND by placing said copies
in the attorney's mail delivery box in the Court Operations Office at Eureka,
California on the date indicated below, or by placing said copies in envelope(s)
and then placing the envelope(s) for collection and mailing on the date
indicated below following our ordinary business practices. I am readily familiar
with this business practice for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and
mailing, it is deposited in the ordinary course of business with the United
States Postal Service at Eureka, California in a sealed envelope with postage
prepaid. These copies were addressed to:
DA (GALLEGOS)-BOX #64 IN COURT OPERATIONS
EDGAR B. WASHBURN 35A
MORRISON & FORRESTER
425 MARKET STREET
SAN FRANCISCO, CA 94105-2482JOHN A. BEHNKE
CARTER BEHNKE OGLESBY & BACIK
PO BOX 720
UKIAH, CA 95482
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct, Executed on the 14 day of June , 2005, at the City of Eureka, County of Humboldt, State of California.
DWIGHT W. CLARK, Clerk of the Court By
Deputy Clerk
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