COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION THREE

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff/Appellant, vs. PACIFIC LUMBER COMPANY, ET AL., Defendant/Respondent.

Case No. A112028 (Humboldt Superior Court No. DR030070)

APPLICATION OF THE CITY AND COUNTY OF SAN FRANCISCO FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT The Honorable Richard L. Freeborn DENNIS J. HERRERA, State Bar #139669 City Attorney DANNY CHOU, State Bar #180240 Chief of Appellate Litigation City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-4655 Facsimile: (415) 554-4699 E-Mail: danny.chou@sfgov.org Attorneys for Amicus Curiae CITY AND COUNTY OF SAN FRANCISCO

APPLICATION FOR LEAVE TO FILE CASE NO. A112028

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION THREE: Pursuant to rule 8.200(c) of the California Rules of Court, the City and County of San Francisco (City) respectfully requests permission to file the brief submitted herewith as amicus curiae in support of appellant the People of the State of California. INTEREST OF AMICUS CURIAE The City is a charter city and county. Like the District Attorney of Humboldt County who filed this action, the City has the duty and authority to "prosecute" an unfair competition action under Business & Professions Code section 17200 et seq. "on behalf of the people of the State of California." (Bus. & Prof. Code, § 17204.) Thus, the City has a direct interest in the subject matter of this appeal – which addresses whether the Noerr-Pennington doctrine and the litigation privilege codified in Civil Code section 47, subdivision (b) limit the District Attorney's authority to prosecute an unfair competition action based on intentional misrepresentations made to an administrative agency during an adjudicatory proceeding. By limiting this authority, the trial court significantly circumscribes the ability of government prosecutors – including the Attorney General, the district attorneys, and certain city attorneys – to police unfair competition and preserve the integrity of the administrative processes. The issues raised in this case are therefore of paramount importance to the City. The City has reviewed the briefs on file in this case to date and does not seek to simply duplicate arguments set forth in those briefs. Rather, the City seeks to assist the Court by: (1) explaining why this Court should
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recognize the judicial fraud exception to the Noerr-Pennington doctrine; (2) clarifying the scope of that exception and its applicability to the agency determination in this case; and (3) expanding upon the reasons why this Court should limit the scope of the litigation privilege in unfair competition actions brought on behalf of the people. The City also seeks to assist the Court in understanding the important public policy considerations involved. The City respectfully submits that there is a need for additional briefing on these matters and that, based on its experience, it may assist this Court in making a sound decision. Accordingly, the City respectfully requests leave to file the brief submitted herewith. Dated: October 30, 2007 DENNIS J. HERRERA City Attorney DANNY CHOU Chief of Appellate Litigation By: DANNY CHOU Attorneys for Amicus Curiae CITY AND COUNTY OF SAN FRANCISCO

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PROOF OF SERVICE I, HOLLY TAN, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the above-entitled action. I am employed at the City Attorney’s Office of San Francisco, City Hall, Room 234, 1 Dr. Carlton B. Goodlett Place, San Francisco, CA 94102. On October 30, 2007, I served the following document(s): APPLICATION OF THE CITY AND COUNTY OF SAN FRANCISCO FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT on the following persons at the locations specified: Paul V. Gallegos Edgar B. Washburn District Attorney Morrison & Foerster, LLP Christa K. McKimmy 425 Market Street Deputy District Attorney San Francisco, CA 94105-2482 Humboldt Countyth Tel: (415) 268-7000 825 Fifth Street, 4 Floor Eureka, CA 95501 Tel: (707) 445-7411 John A. Behnke Carter, Behnke, Oglesby & Bacik 169 Mason Street, Suite 300 Ukiah, CA 95482 California Supreme Court 350 McAllister Street San Francisco, CA 94102 (5 copies via personal service) in the manner indicated below:
BY UNITED STATES MAIL: Following ordinary business practices, I sealed
true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be deposited, postage prepaid, with the United States Postal Service that same day.

Hon. Richard L. Freeborn Humboldt County Superior Court Eureka, CA 95501 (1 Copy)

BY PERSONAL SERVICE: I sealed true and correct copies of the above
documents in addressed envelope(s) and caused such envelope(s) to be delivered by hand at the above locations by a professional messenger service.

I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed October 30, 2007, at San Francisco, California. HOLLY TAN
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