Ast CIVIL NO. A112028 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION THREE THE PEOPLE OF THE STATE OF CALIFORNIA, Appellant and Plaintiff, v. THE PACIFIC LUMBER COMPANY, SCOTIA PACIFIC COMPANY LLC AND SALMON CREEK LLC, Respondents and Defendants. On Appeal From the Judgment of the Humboldt County Superior Court (Superior Court Case No. DR030070) ‘The Honorable Richard L. Freeborn, Judge Presiding ANSWER OF RESPONDENTS/DEFENDANTS THE PACIFIC LUMBER COMPANY, SCOTIA PACIFIC COMPANY LLC AND SALMON CREEK LLC TO AMICUS CURIAE BRIEF FILED BY THE CITY AND COUNTY OF SAN FRANCISCO EDGAR B. WASHBURN (#34038) ewashburn@mofo.com CHRISTOPHER J. CARR (#184076) ccarr@mofo.com WILLIAM M. SLOAN (#203583) SHAYE DIVELEY (#215602) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Tel: 415.268.7000 Fax: 415.268.7522 Attorneys for Respondents and Defendants THE PACIFIC LUMBER COMPANY, SCOTIA PACIFIC COMPANY LLC and SALMON CREEK LLC sf-2417407TABLE OF CONTENTS INTRODUCTION. ARGUMENT 1. The Sham Exception to the Noerr r Pennington Doctrine Is Not Applicable Here . A. The Sham Exception Does Not Apply asa Matter of Law Because Pacific Lumber’s Efforts to Obtain Approvals under the Headwaters Agreement Were Successfil... B, The Trial Court Properly Determined that the “Sham” Exception Does Not Apply to Pacific Lumber’s Alleged Lobbying Activities . C, Even If It Did Exist, the “Judicial Fraud” Exception Would Not Apply to the CEQA Process for the SYP... D. The Noerr-Pennington Doctrine Is Necessary to Prevent a Chilling Effect on Petitioning Activities Il The Litigation Privilege Applies to Actions Brought by District Attorneys........ ee A. No Case Has Exempted Public Prosecutors from the Protections Afforded by Section 47 B. Public Policy Strongly Supports Application of the Litigation Privilege in All Cases, Including Those Brought by District Attomey: CONCLUSION, s6-2417407TABLE OF AUTHORITIES Page(s) CASES Action Apartment Association, Inc. v. City of Santa Monica, Al Cal. 4th 1232 (2007 Blank v. Kirwin, 39 Cal. 3d 311 (1985).. Braun v. Bureau of State Audits, 67 Cal. App. 4th 1382 (1998)... Briggs v. Eden Council for Hope & Opportunity, 19 Cal, 4th 1106 (1999) California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). California Teachers’ Association v, State of California, 20 Cal. 4th 327 (1999). City of Cleveland v, Cleveland Electric Hluminating Co., 734 F-2d 1157 (6th Cir. 1984)... a Dixon v. Superior Court, 30 Cal. App. 4th 733 (1994)... Hi-Top Steel Corp. v. Lehrer, 24 Cal. App. 4th 570 (1994)... Hlinois v. Panhandle Eastern Pipe Line Co, 730 F. Supp. 826 (C.D. Ill. 1990). Kottle v. Northwest Kidney Centers, 146 F.3d 1056 (9th Cir. 1998)... Laurel Heights Improvement Association v. Regents of University of California, 6 Cal, 4th 1112 (1993) Ludwig v. Superior Court, 37 Cal. App. 4th 8 (1995) Marina Point Development Associates v. United States, 364 F. Supp. 2d 1144 (C.D. Cal. 2005). Matossian v. Fahmie, 101 Cal. App. 34 128 (1980). ii 2417407