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Topic:
Ideal Time for Facts

       

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 By martin newkom

11/19/2006  6:25AM

The abuse of the law and constituents, manipulation of
Grand Juries and out and out
lying are tactics of the legal
profession that are as old and
as standard operating procedure
as the "world's oldest profession".
 By Michael Miller

11/15/2006  3:58PM

“When you ain’t got nothen’, you got nothen’ to lose”. Bob Dylan.


The defendants lost their excuses for immunity in the Superior Court. They now appeal to the Cal Appellate Court for amnesty from accountability on the same notion. It is my belief that the defendants have nothen’ in the law, facts, evidence and story to support their defense of wrong doings. They may think they have nothen’ to lose but are delusional.

Following is the answer to the amicus brief filed by California’s Attorney General. Klaus has clearly presented our views without any prejudice towards the opinion of the Attorney General’ lawyers.

Government Code, Title One, section 810.2 says: “Employee” includes an officer, judicial officer as defined in Section 327 of the Election Code, employee or servant whether or not compensated, but does not include an independent contractor. Section 811.4 says, “Public employee” means an employee of a public entity.

The Law Revision Commission comments are, “Liability and immunity provisions in Division 3.6 are often made to “public employees.” These provisions will not be applicable to independent contractors since the term “employee” is defined in section 810.2 to exclude independent contractors.

By specific language in CDAA contract with the State of California, the lawyers are not employees but independent contractors. Contract # 40920043 between Department of Industrial Relations and California District Attorneys Association, section 4(e) says, “The employment of all circuit prosecutors, investigators and all other personnel utilized by the CDAA in accomplishing the Purpose of this agreement shall be deemed to be employees of the CDAA.”

The carpetbaggers did not follow the law in seeking the privilege to practice prosecution in little Sierra County. It is not a mere technicality that the law was not followed. What about the Miranda Rights law? Is it a mere technicality that should be brushed aside when an accused criminal is not read his rights? Killers have walked free because of a lapse of a “technicality.

Comments welcomed or suggestions on how to broaden the awareness that members of the California State Bar expect absolute immunity from abusing the meaning of our laws and the dignity of our courts. The AG's brief can be read on this topic, entered on 10/17/2006. Here is Klaus’s brief.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

MICHAEL M. MILLER, et al.,
Appeal No. C051696
Plaintiff and Respondent
From Sierra County
Superior Court Case
No. 6293

GALE FILTER, et al.,
Defendants and Appellants

ANSWER OF RESPONDENT
ORIGINAL SIXTEEN-TO-ONE MINE, INC.
TO AMICUS CURIAE BRIEF OF ATTORNEY GENERAL

Appeal From Sierra County Superior Court,
Honorable Stanley C. Young, Judge

KLAUS J. KOLB (SBN 146531)
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Telephone: (916) 558-6160
Facsimile: (916) 492-0598
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.

INTRODUCTION

The Attorney General submitted its Amicus Curiae Brief (“ACB”) in support of the Appellants “to underscore the importance of prosecutorial immunity in fostering unflinching and impartial law enforcement,” and because the Attorney General perceived that the Sierra County Superior Court improperly focused on defendants’ failure to comply with “technical details” and “procedural niceties” rather than on “the prosecutorial function they performed.” ACB 1, 9.
Respondent Original Sixteen-To-One Mine, Inc., shares the Attorney General’s goal of fostering unflinching and impartial law enforcement. Impartial law enforcement would have prevented the serious harm to Respondent that gave rise to this action.
Respondent also agrees with the Attorney General’s argument that “[t]he purpose of providing immunity for prosecutors and judges is to provide a prompt procedural escape hatch, so that public servants are not exposed to time-consuming personal attacks based on their public service.” ACB 3 [italics added]. However, the Attorney General’s argument that prosecutorial immunity depends solely on whether a defendant allegedly carried out a “prosecutorial function” obviously goes too far, particularly when it is applied to private parties, who have financial incentives and ulterior motives that are inconsistent with public service. The Attorney General’s suggestion that prosecutorial immunity depends solely on whether someone purported to carry out a “prosecutorial function” would automatically immunize all actions of private bounty hunters and vigilantes, and the conduct of those who unlawfully impersonate police officers or district attorneys. Such a rule would clearly be inconsistent with the Attorney General’s and the Respondent’s goal of fostering unflinching and impartial law enforcement.
The Attorney General argues that “[t]he public is best served when public servants are free from fear.” ACB 5. However, the Attorney General does not cite any reason or authority that suggests that the public is best served when private parties are automatically immunized from all consequences when they wrongfully assume the powers of public officials, and misuse those powers for financial gain and ulterior motives. Under those circumstances, the public is better served when “the important societal goal of compensating injured parties for damages caused by willful or negligent acts ... prevail[s].” Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-93, quoting Ramos v. County of Madera (1971) 4 Cal.3d 685, 692.
Respondent Original Sixteen-To-One Mine respectfully suggests that the Attorney General, in his rush to protect prosecutorial immunity for public officials, has not focused on the procedural context for this appeal. This is not an appeal from a trial, in which a trier of fact has found true only those facts alleged by defendants. This appeal arises from an anti-SLAPP motion to dismiss, filed by defendants after only minimal discovery by either party, in which the Court must credit any admissible evidence, or any reasonable inferences from that evidence, submitted by plaintiff/respondent Original Sixteen-To-One Mine.
The Attorney General’s argument appears to be predicated on the assumption that the only difference between defendants and a duly appointed deputy district attorney is that the defendants’ appointment papers were not properly filed – a “shortcoming” in defendants’ appointments that “can best be described as a technicality ....” ACB 1, 2, 8, 9. The Attorney General’s argument therefore assumes as true one of defendants’ arguments, and ignores all of the other evidence submitted by Respondent Original Sixteen-To-One Mine.
Respondent vigorously objects to the Attorney General’s assumption that this case is about a “technicality” or some “shortcoming” with respect to “procedural niceties.” What is at issue in this case is whether a private party can improperly assume the powers of elected government officials, misuse those powers for ulterior purposes, and then claim automatic and complete immunity for any damages that result. Among the evidence and reasonable inferences the Attorney General ignores are the facts that:
(1) CDAA, a private entity, had a financial incentive to initiate a prosecution of Original Sixteen-To-One regardless of the merits of that prosecution, because CDAA was attempting to demonstrate that it deserved an extension of its contract with the Department of Industrial Relations (“DIR”) (3 C.T. 459, 456, 458; 4 C.T. 827, 979);

(2) CDAA pressed for a criminal prosecution of Original Sixteen-To-One Mine despite the fact that the state and federal agencies responsible for investigating worker safety at the mine had concluded that there were no “willful” violations of any safety regulations at the Mine (3 C.T. 476, 481-84; 4 C.T. 810, 818, 829-830, 899-909; RJN Exs. 2, 3);

(3) The Sierra County District Attorney did not request assistance from CDAA and expressed no desire to prosecute Original Sixteen-To-One Mine during the almost thirteen months between the date of the accident and the date CDAA representatives personally “presented” their proposed criminal prosecution to the District Attorney – “CDAA came to her with a completed investigation proposing to file criminal charges ... and forced their way into Sierra County” (4 C.T. 810, 812; 3 C.T. 465; 2 C.T. 449, 436);

(4) The CDAA did not carry out its prosecution of Original Sixteen-To-One Mine under the supervision and control of the elected District Attorney, as required by state law and its contract with DIR, but rather pursued the prosecution despite the fact that the elected District Attorney “wanted nothing to do with the issue and saw no crime ...” and “said she was not participating in the case ....” (4 C.T. 778-780, 810, 812-13, 819-820, 843; 2 C.T. 270); and

(5) CDAA then initiated an improper prosecution and improperly obtained an indictment, which the Superior Court subsequently dismissed due to CDAA’s misconduct (1 C.T. 81-88), and which the newly elected District Attorney chose not to pursue (4 C.T. 827, 992-993; 2 C.T. 280).

Finally and most importantly, the Attorney General’s Amicus Brief makes no attempt to even address defendants’ burden of proof on an anti-SLAPP motion to dismiss. No matter how important prosecutorial immunity may be to the Attorney General, an anti-SLAPP motion to dismiss cannot be converted into an appeal of a motion for directed verdict or trial judgment merely because the Attorney General has determined that “the record is sufficiently well developed” to dismiss the defendants based on their claim of immunity. ACB 3, 9. The Attorney General’s suggestion that the Court ignore defendants’ burden of proof on an anti-SLAPP motion and simply dismiss the claims against defendants because “judicial economy favor[s] expeditious resolution of the immunity question by the Court of Appeal, rather than remanding for a subsequent summary judgment” is totally without merit, completely contrary to the California Supreme Court’s directions on how the anti-SLAPP statute should be applied, and would violate plaintiffs’ rights to due process.
ARGUMENT

A. Neither the CDAA Defendants’ Nor The Attorney General Are Permitted To Use An Anti-SLAPP Motion To Seek Dismissal Unless They First Prove That This Action Arises From Protected Speech Or Petitioning Activity.

It is by now well-settled that a motion to dismiss brought pursuant to the anti-SLAPP statute, California Code of Civil Procedure (“C.C.P.”) section 425.16, can only be granted if it strictly complies with the requirements of that statute. As the California Supreme Court recently summarized in Soukup v. Law Offices Of Herbert Hafif (2006) 39 Cal.4th 260, 278-79:
“Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made threshold showing that the challenged cause of action is one arising from protected activity . . . . If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute.” (Id. at p. 89.) [Italics in original.]

Neither defendants nor the Attorney General is entitled to even reach the “minimal merit” phase of anti-SLAPP review – the phase in which defendants’ claims of prosecutorial immunity become relevant – unless defendants first prove that their conduct at issue “arises from protected speech or petitioning activity ....” Navellier v. Sletten (2002) 29 Cal.4th 82, 89. As the Supreme Court affirmed in Flatley v. Mauro (2006) 39 Cal.4th 299, 313, “[t]he ‘scope of [section 425.16] is not without limits, as demonstrated in . . . cases finding lawsuits were not within its protection.’ [Citations omitted.]” In Flatley, for example, the Supreme Court affirmed earlier cases that found that undisputably unlawful activity is not constitutionally protected, and therefore does not qualify for the protections of the anti-SLAPP statute. Id. at 320.
In this case, the Superior Court correctly concluded that defendants’ conduct of unlawfully assuming the powers of a district attorney to improperly criminally prosecute the plaintiffs was not conduct protected by constitutional guarantees of free speech or petition. See Respondent’s Brief at 21-38. The Attorney General’s Amicus Brief does not even address this prong of the anti-SLAPP statute, and instead appears to suggest that the Court simply skip ahead and dismiss the claims against defendants based on the Attorney General’s definition of prosecutorial immunity, regardless of whether or not this action qualifies for the anti-SLAPP statute. See, e.g., ACB 9.
The Attorney General’s suggestion that the Court simply dismiss all claims against defendants because “judicial economy favored expeditious resolution of the immunity question by the Court of Appeal, rather than remand for a subsequent summary judgment,” is completely inconsistent with the purpose of the anti-SLAPP statute, and contrary to the Supreme Court’s directions on how that statute must be applied. The only supporting authority cited by the Attorney General, Buford v. State of California (1980) 104 Cal.App.3d 811, 826, involved an appeal from a
successful demurrer, and had nothing to do with the anti-SLAPP statute. In Buford, the Court of Appeal sustained a demurrer because Govt Code §854.8 immunized public entities from any injury proximately caused by a patient of a mental institution. Although respondent had not cited the same statute below, the Buford court noted that a demurrer may be sustained without leave to amend if there is no reasonable probability that the defect can be cured by amendment, even if a certain “defects of substance” are raised for the first time on appeal. Id. at 818, 826.
This is not an appeal from a demurrer, or from a judgment after trial. The Supreme Court has repeatedly pointed out that the special protections provided by the anti-SLAPP motion, including the attorney fee shifting provision, cannot be used for purposes other than those expressly set forth in the statute. In Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65-66, for example, the Supreme Court upheld the fee shifting provisions of the anti-SLAPP statute against constitutional challenge by explaining:
Contrary to Equilon’s assertion, our conclusion will not allow the anti-SLAPP statute itself to become a weapon to chill the exercise of protected petitioning activity by people with legitimate grievances. The anti-SLAPP remedy is not available where a probability exists that the plaintiff will prevail on the merits. (§425.16, subd. (b).) “The Legislature, moreover, has provided, and California courts have recognized, substantive and procedural limitations that protect plaintiffs against overbroad application of the anti-SLAPP mechanism.” (Briggs, supra, 19 Cal.4th at pp. 1122-1123).
. . . Most importantly, section 425.16 requires every defendant seeking its protection to demonstrate that the subject cause of action is in fact one “arising from” the defendant’s protected speech or petitioning activity (§425.16, subd. (b).)
In Flatley v. Mauro, supra, 39 Cal.4th at 324, the Supreme Court again resisted an argument that the anti-SLAPP statute be extended to protect policies (the litigation privilege) that are not part of the statute.
Section 425.16 is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from abuse of the judicial process (§425.16, subd. (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. (§425.16, subd. (b)(1).)
Similarly, the purpose of section 425.16 is not on “shielding prosecutors from civil suits arising from their work ...,” even if the Attorney General believes “the record is sufficiently well developed” to adopt the broad interpretation of prosecutorial immunity urged in the Amicus Brief. ACB 3, 9. Unless defendants or the Attorney General first prove that defendants’ conduct in unlawfully assuming the powers of a district attorney to wrongfully prosecute Respondent was in furtherance of their valid exercise of the constitutional rights of free speech and petition, the Attorney General must wait for another motion in another forum to argue for expanding the scope of prosecutorial immunity. For the reasons already set forth in Respondent’s Brief at 21-38, neither defendants nor the Attorney General are entitled to reach the issue of prosecutorial immunity in this case, because this case does not arise from conduct by defendants that is protected by the constitutional rights of free speech or petition.

B. The Attorney General’s Arguments For Applying Prosecutorial Immunity To This Case Improperly Ignore Plaintiff’s Evidence.

As noted above, the Attorney General’s argument for applying prosecutorial immunity to defendants in this case appears to be predicated on the assumption that the only thing distinguishing these defendants from any duly elected or appointed district attorney is a “technicality” or some “shortcoming” with respect to “procedural niceties.” ACB 1, 2, 8, 9. In so doing, the Attorney General has assumed as true defendant’s version of the facts, and ignored all of the other evidence submitted by Respondent Original Sixteen-To-One Mine. The Attorney General’s argument thereby again ignores the requirements of the anti-SLAPP statute.
In Soukup, supra, 39 Cal.4th at 278, the Supreme Court described the procedure to be applied to an anti-SLAPP motion once an action is shown to arise from the valid exercise of the constitutional rights of freedom of speech or petition for the redress of grievances:
“Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” [Citations omitted.]

It is well-settled that a court applying this summary-judgment-like procedure to an anti-SLAPP motion “may not weigh the credibility or comparative probative strength of competing evidence.” Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 105; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823. An anti-SLAPP motion to dismiss therefore must be denied if the plaintiff has presented admissible evidence, “and all reasonable inferences deducible from the evidence, ...” that show “a probability exists that the plaintiff will prevail on the merits. (§425.16, subd. (b).)” C.C.P. 437c subd. (c); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at 65.
The Attorney General’s argument for applying prosecutorial immunity in this case is based entirely and improperly on the assumption that the only thing distinguishing defendants from any duly elected or appointed district attorney is a missing appointment paper in the Sierra County files. What the Attorney General ignores is crucial in determining whether defendants in this case deserve an extension of prosecutorial immunity, even if it were assumed that defendants could reach the “minimal merit” prong of the anti-SLAPP inquiry in this case. Among other things, the Attorney General ignores the following evidence and reasonable inferences from the evidence:
(1) CDAA is a private entity, with a financial incentive to initiate prosecutions. For example, at about the same time that CDAA obtained a preliminary hearing on the criminal charges it filed against Respondent, CDAA sent a letter to the California Department of Industrial Relations (“DIR”) referring to efforts to extend its contract with DIR, and cited its prosecution of Original Sixteen-To-One Mine as an example of the progress CDAA was making. 4 C.T. 813, 827, 840, 974-982.
(2) CDAA pressed for a criminal prosecution of Original Sixteen-To-One Mine despite the fact that the state and federal agencies responsible for investigating worker safety at the mine had concluded that there were no “willful” violations of any safety regulations at the Mine (3 C.T. 476, 481-84; 4 C.T. 810, 818, 829-830, 899-909; RJN Exs. 2, 3).
(3) The Sierra County District Attorney did not request assistance from CDAA and expressed no desire to prosecute Original Sixteen-To-One Mine during the almost thirteen months between the date of the accident and the date CDAA representatives personally “presented” their proposed criminal prosecution to the District Attorney. A jury could infer that the November 16, 2001 letter that was personally “presented” to the Sierra County District Attorney by CDAA defendants contained an implicit direction that the District Attorney cooperate with CDAA defendants. 3 C.T. 465. This inference is supported by the District Attorney’s subsequent admission that: “CDAA came to her with a completed investigation proposing to file criminal charges ... She told me that she disliked CDAA and how they forced their way into Sierra County and how they behaved. She said it was a powerful organization that could do what it wanted.” (4 C.T. 810, 812; 3 C.T. 465; 2 C.T. 449, 436).
(4) The CDAA did not carry out its prosecution of Original Sixteen-To-One Mine under the supervision and control of the elected District Attorney, as required by state law and its contract with DIR (3 C.T. 453-56), but rather pursued the prosecution despite the fact that the elected District Attorney “wanted nothing to do with the issue and saw no crime ...” and “said she was not participating in the case ....” 4 C.T. 810, 812-13. The District Attorney told several witnesses, including the local newspaper, words to the effect that: “Oh, I don’t know anything about that [the prosecution of Original Sixteen-To-One Mine]. You’ll have to ask the California District Attorney’s Association lawyer.” 2 C.T. 270; 4 C.T. 778-780, 812-813; 819-820, 843. The declarations of CDAA defendants submitted in support of the motion confirm the fact that CDAA defendants knew they were not supervised by the District Attorney – the CDAA declarations can barely come up with any communications between the District Attorney and CDAA defendants during the entire prosecution of Respondent, from CDAA defendants’ first meeting with the District Attorney on November 27, 2001, until CDAA defendants obtained the improper Grand Jury Indictment on October 29, 2002. 2 C.T. 422 - 450, see Respondent’s Brief at 10-14.
(5) CDAA defendants initiated an improper prosecution and improperly obtained an indictment, which the Superior Court subsequently dismissed due to CDAA’s misconduct (1 C.T. 81-88), and which the newly elected District Attorney chose not to pursue (4 C.T. 827, 992-993; 2 C.T. 280). Among other things, CDAA defendants abandoned the preliminary hearing that they had set once it became clear that Original Sixteen-To-One Mine, Inc., intended to present exculpatory evidence, and CDAA defendants then failed to present known exculpatory evidence to the Grand Jury. 1 C.T. 81-88; 2 C.T. 426, 3 C.T. 450; 4 C.T. 784-86; 813-14, 817-18, 827, 844-46, 859-98, 969-70, 998; see generally, Respondent’s Brief at 15-18.
As the foregoing review of plaintiffs’ evidence demonstrates, the misconduct at issue in this case goes far beyond a mere “technicality” or procedural shortcoming. Plaintiffs’ complaint charges defendants with improperly assuming the power of a district attorney, in violation of the California Constitution (Articles V, §13, and XI, §1(b)) and California statutes (e.g., Govt Code §§24101 and 24102), and with abusing those improperly assumed government powers to subject plaintiffs to an improper and malicious criminal prosecution. The Attorney General’s argument that prosecutorial immunity should be extended to these defendants because they are a mere “technicality” away from being legitimate state employees grossly mischaracterizes the evidence and what is at stake in this litigation. The Attorney General’s attempt to shortcut the anti-SLAPP procedure, and obtain a ruling based on assumed facts, also demonstrates the danger of misapplying the anti-SLAPP statute. As explained in Wilcox v. Superior Court, supra, 27 Cal.App.4th at 823:
In order to satisfy due process, the burden placed on the plaintiff must be compatible with the early stage at which the motion is brought and heard (§425.16, subds. (f) and (g)) and the limited opportunity to conduct discovery (subd. (g)). In order to preserve the plaintiff’s right to a jury trial the court’s determination of the motion cannot involve a weighing of the evidence. [Citations omitted.]

C. The Attorney General’s Authorities Do Not Support Extending Prosecutorial Immunity To CDAA Defendants.

Respondent has no quarrel with most of the Attorney General’s review of the history and purposes of prosecutorial immunity. Respondent does not dispute that prosecutorial immunity serves a valuable purpose when applied to public employees. However, Respondent parts company with the Attorney General to the extent the Attorney General wishes to extend the reach of prosecutorial immunity beyond the plain language of Government Code section 821.6, and grant automatic and complete immunity to private actors whenever they claim to be carrying out a prosecutorial function.
Government Code §821.6 provides:
A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.
Government Code §811.4 defines “Public employee” as “an employee of a public entity.” In its contract with DIR, CDAA unambiguously agreed that neither CDAA nor CDAA’s employees would be deemed employees of anyone other than CDAA. 3 C.T. 453, 456. The Attorney General does not dispute this. According to the plain language of the statute, CDAA employees therefore do not qualify for prosecutorial immunity because they are not “public employees.”
The Attorney General has not presented any good reason or authority that supports extending the reach of Government Code §821.6 beyond the plain meaning of the statute. California courts have long followed the rule that, “‘[w]here possible we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law ...” [Citations omitted.] Flatley v. Mauro, supra, 39 Cal.4th at 312. The
California Supreme Court has been particularly reluctant to expand the plain meaning of statutes when it comes to claims of immunity by alleged government actors. Thus in Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at 792-93, the Supreme Court held: We have also held that, “in governmental tort cases ‘the rule is liability, immunity is the exception’ .... Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.” (Ramos v. County of Madera (1971) 4 Cal.3d 685, 692.

As the Attorney General notes, most of the recent cases cited by the Attorney General in support of the application of prosecutorial immunity are cases that apply Govt Code §821.6. All of those cases cited by the Attorney General apply prosecutorial immunity to persons who are conceded to be “public employees” acting within the scope of their duties. For example, Tur v. City of Los Angeles (1996) 51 Cal.App.4th 897, 900, found immunity under Govt Code §821.6 for firefighters, and held that immunity under that statute was not limited to peace officers, but applied to various other public officials who performed prosecutorial functions. Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 284, applied Govt Code §821.6 to a county social worker acting within the scope of her employment who initiated child custody proceedings. Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1437, found that public employees who performed prosecutorial functions in connection with a disciplinary proceeding were also immunized under Govt Code §821.6.
In each of these cases, courts looked at whether a defendant was performing “prosecutorial functions” after the courts had already concluded that the defendant was a public employee acting within the scope of his or her employment. None of those cases suggest that “prosecutorial function” could substitute for status as a “public employee” to qualify for absolute immunity under Govt Code §821.6.
Citations to cases that discuss immunity in the context of a federal civil rights actions brought pursuant to 42 U.S.C. §1983, such as Greene v. Zank (1984) 158 Cal.App.3d 497, and Horowitz v. Board of Medical Examiners (10th Cir. 1987) 822 F.2d 1508, do not help the Attorney General’s arguments about the interpretation of Govt Code §821.6 either, because immunity under section 1983 depends on federal law.
“Because section 1983 was intended by Congress as a remedy to prevent unconstitutional acts by state and local officials, we must look to federal law to determine the scope of immunity of governmental officials from a section 1983 suit. [Citations omitted.]”

Bradley v. Medical Board (1997) 56 Cal.App.4th 445, 454. Even California cases involving section 1983 claims do not attempt to use Govt Code §821.6 to define the scope of immunity. See, e.g., Bradley, supra; Greene v. Zank, supra, 158 Cal.App.3d at 503-09. Moreover, under federal law, even duly appointed prosecutors may be entitled to only qualified immunity, rather than the absolute prosecutorial immunity provided by Govt Code §821.6, depending on the precise function they were performing at the time. Bradley, supra, 56 Cal.App.4th at 454.
Finally, the Attorney General makes fleeting reference to the “de facto” officer doctrine in an apparent effort to extend the prosecutorial immunity of Govt Code §821.6 to CDAA defendants in this case. However, none of the cases cited by the Attorney General holds that alleged status as a “de facto” officer qualifies a non-public employee for absolute immunity for his or her wrongful acts, either under Govt Code §821.6, or otherwise. Instead, the cases cited in support of the “de facto” officer doctrine, such as County of Ventura v. Barry (1929) 207 Cal.App.189, 190, and People v. Kempley (1928) 205 Cal. 441, 445-46, simply hold that the otherwise proper or “lawful” acts of a “de facto” officer are not subject to collateral attack. Neither of these cases holds that a “de facto” officer is automatically and completely immune for wrongful or unlawful acts committed while acting as a de facto officer, nor do these cases suggest that a “de facto” officer who is not a public employee qualifies for absolute immunity under Govt Code §821.6.
Moreover, as noted in Respondent’s Brief at 41-48, and as determined by the Superior Court (11 C.T. 2780), major factual issues remain about whether CDAA defendants meet the criteria required to qualify as “de facto” officers. See, e.g., In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42 (holding that the “lawful acts” of a de facto officer are not subject to collateral attack). Among other things, CDAA defendants themselves have submitted evidence that at least some members of the public – including plaintiffs and the local newspaper – did not “acquiesce” in CDAA’s attempt to assume the role of district attorneys. See, e.g., CDAA’s motion for change of venue, 1 C.T. 241 - 2 C.T. 333; 6 C.T. 1374-1577. CDAA defendants certainly admit that plaintiffs objected to CDAA defendants’ attempts to exercise the powers of the Sierra County District Attorney at the time CDAA carried out its wrongful prosecution. 3 C.T. 604-607, 619, 621; 4 C.T. 812-13, 839, 846; Appellants Opening Brief at 35-39. Further, plaintiffs’ evidence and reasonable inferences from that evidence are sufficient to allow a jury to conclude that CDAA defendants had actual knowledge that they were acting outside the scope of their legal authority, as defined in CDAA’s contract with DIR, in that CDAA defendants did not act at the request of the local District Attorney, did not act under her supervision and control, and did not defer to the District Attorney’s charging, filing and settling authority. See Respondent’s Brief at 44-48.
The bottom line is that the Attorney General’s arguments to expand the scope of absolute prosecutorial immunity to private parties merely because those private parties claim to be performing a public function are not supported by any California authorities and are not supported by good sense. As noted above, if the Attorney General’s arguments were applied as written, every vigilante, private bounty hunter, and imposter would qualify for automatic and absolute immunity for any injury or damage he or she causes while pretending to carry out a prosecutorial function. Such a broad scope of immunity cannot be what the Legislature intended when it chose the plain language of Govt Code §821.6. No policy reason offered by the Attorney General or CDAA supports such a broad extension of immunity to private parties who cause substantial injury to others. To the contrary, granting absolute immunity to anyone who claims to be acting on the public’s behalf would encourage more wrongdoing, immunize wrongdoers from the consequences of their actions, and leave injured parties, such as Respondent, without a remedy. CONCLUSION
The Attorney General explained that he filed an Amicus Brief in this case to “underscore the importance of prosecutorial immunity in fostering unflinching and impartial law enforcement.” ACB 1. Respondent shares the Attorney General’s goal. However, the Attorney General’s concerns about prosecutorial immunity are misplaced in the context of this appeal.
First, as an appeal of an anti-SLAPP motion to dismiss, the defendants claims to prosecutorial immunity only become relevant if defendants first show that their conduct at issue arises out of the valid exercise of their constitutional rights of free speech or petition. For reasons set forth above and more fully in Respondent’s Brief, Respondent maintains that defendants do not have a constitutional right to wrongfully assume the powers of a district attorney and criminally prosecute a fellow citizen.
Second, the Attorney General’s concerns about a supposed erosion of prosecutorial privilege appear to be based on CDAA defendants’ version of the facts, and ignore the evidence submitted by plaintiffs. The Attorney General’s concerns are therefore based on assumed facts that do not reflect the actual misconduct at issue in this case.
In the final analysis, the Attorney General has no reason to be concerned about Respondents’ claims against CDAA defendants in this case. Nothing about Respondents’ claims will interfere with the ability of the Attorney General or any properly appointed or elected District Attorney to carry out his or her lawful duties. To the contrary, the Attorney General should support Respondent’s efforts to ensure that only duly elected or appointed public officials wield the extraordinary power that the California Constitution delegates to the Attorney General and the elected District Attorney for each County. Similarly, the Attorney General should support Respondent’s efforts to hold those who are not properly elected or appointed responsible for the injury and damages they cause when they assume powers to which they are not entitled, and then abuse those powers for ulterior or improper purposes.
In any event, Respondent respectfully submits that the Attorney General’s Amicus Brief does provide any reason to stretch the scope of the anti-SLAPP statute to deny Respondent the opportunity to prove its claims at trial. The CDAA defendants’ misconduct at issue in this case still does not arise from constitutionally protected free speech or petition rights, and Respondent has already demonstrated that its claims have the “minimal merit” required to avoid an early motion to dismiss. Respondent Original Sixteen-To-One Mine, Inc., therefore again respectfully requests that the order of the Sierra County Superior Court denying defendants’ anti-SLAPP motion be affirmed.

Respectfully submitted November 14, 2006,

Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.









CERTIFICATE OF WORD COUNT

The text of ANSWER OF RESPONDENT ORIGINAL SIXTEEN-TO-ONE MINE, INC., TO AMICUS CURIAE BRIEF OF ATTORNEY GENERAL consists of 5,376 words, as counted by the Corel WordPerfect version 9 word-processing software I used to generate this Brief.

Dated: November 14, 2006.
Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.
 By Michael Miller

11/02/2006  3:32PM

Mining never stopped.

Adding real social benefits from a successful outcome of plaintiffs’ suit does not hinder or compromise our mining effort to daylight gold from the Sixteen to One vein. The pursuit of compensation, justice and accountability from some evil legal/political machinations is a positive undertaking, similar to that which was successfully undertaken against MSHA. Success will benefit shareholders’ equity, value and potential to exploit their exceptional mineral deposit. The effort is worth the reward or the reward is worth the effort.

The crew sacked high-grade last Tuesday, gold in two places showing, two slab rounds but, like most of our mining, the continuation and value of the pocket will not be known until after it is mined. Kind of reminds one of some of the problems associated with the study of geology; however, you will never know unless you go.
 By John Yuma

10/31/2006  7:26PM

get over it and get back to mining.
 By Michael Miller

10/31/2006  4:15PM

Most every adult in California and the United States of America know and have expressed their discontent with lawyers in modern times. It was not always this way. In fact sixty years ago people believed that lawyers were right up there with doctors in trust and social stature. What happened? Most importantly, what can be done about the sorry state of affairs regarding our lives, as lawyers continue to stink up the environment?

Is it true that the lawyers who form sentences with colorful words and metaphors will be the ones to subjugate the rules of society? Will they be the winners over the evidence and the law? A number of new TV shows seem to have this theme. Lawyers certainly do not add to America’s gross national product with many of their antics. An example of such drivel just passed into my hands in the form of Mr. Tom Knox’s reply brief to the august California Court of Appeals, 3rd District in Sacramento.

For those of you following the self serving, law breaking (misleading a grand jury), antics of the California District Attorneys Association and four of their non government employees, you know that I have the greatest respect for our legal system and hold many practicing lawyers in the highest esteem. Four of my former attorneys are Superior Court judges.

I write about this case with the hope that honorable men and women of law will seize this case with the passion they once held for lawyering. Remember years ago when every comedian, analyst and the average Joe or Joanne bantered lawyer joke after lawyer joke. The trade must have recognized the pit they were in. Jokes subsided but the root causes of America’s feelings about lawyers did not change. Today people have moved on to other target of scorn or sadly came to the conclusion that improvement would not materialize. No, no, no. Improvement is nearby. Improvement is vital for our society to keep pace with the microeconomics of a global economy. The bleeding of money into nonproductive work must stop. All that separates our American society from slavery are guns and the judges seated in our courtrooms. My bet goes with the courtroom.

So, what is the improvement to clean the scene lurking nearby? Fortunately, in California there is a State Bar with rules of conduct legislated into law by our elected representatives. There are consequences for misbehavior: disbarment and criminal prosecution if probable cause exists. Lawyers are like doctors in that they hate to testify let alone prosecute one of their own. Why is beyond me. This is how we survive as a free and independent country. I know that the code was broken for doctors two decades ago. I had such an experience with a doctor who was knowledgeable about the death of my seven-year-old son at the University of California at Davis hospital in Sacramento and not afraid or too busy to speak out. Because of him and because of what I did about his disclosure, changes were made that may have saved seriously injured children in an emergency room.

So today another opportunity exists to improve the American or at least the Californian judicial system. You should be outraged at Mr. Tom Knox’s assertions along with his arrogant style of presentation to the 3rd Appellate Court.. You will be, but that may not be enough. The CDAA gang worked to infiltrate a small rural public office; they solicited business through its non profit corporation of taxpayers money, they played politics with the law; they violated the trust of Californians and sought to privatize prosecution and criminalize accidents; they indicted without probable cause, knowingly, I might add. Now they want to get a pass on the theory that they are not responsible for their behavior, are immune from accountability and free to continue to screw up people’s lives and businesses.

You should be outraged. You should also recognize that opportunities to correct the long-standing decline in professional behavior of lawyers are before the Court. Lloyds of London is paying for Mr. Knox. We do not have that luxury. What we do have is the law and the truth of the sinister lawyering performed by Gale Filter, who led an inexperienced subordinate and two others to conspire in Sierra County. Help me change the course of unacceptable behavior.

This brief is 39 pages. I’m not sure how to get it broadly distributed. I will make copies and mail to anyone asking until we find another way. Here is the thrust and tone of Mr. Tom Knox’s fictional prose. It is in his conclusion. “The conduct of Appellants that forms the gravamen of Respondent’s case – the prosecution – falls within the ambit of the anti-SLAPP statute. Appellants’ conduct as prosecutors was not illegal…… As to the second prong of the anti-SLAPP test, Appellants are entitled to the benefit of prosecutorial immunity and the litigation privilege.” If in the minds of the defendants they are “entitled to the benefit” they hold themselves out to be a privileged class of Californians, something the constitution speaks directly to.

So, why did the Attorney General step into this case? Here is one answer that few know. CDAA recently admitted that several counties in California failed to properly swear deputy DA’s as required by law. When a new DA is elected, his or her deputies must be appointed in writing under strict rules. Think about how disruptive this could be for convicted inmates when they learn that the man or woman prosecuting them was not authorized to do so. Oh, my goodness! What a mess! What a potentially costly mess! Fortunately for California, the issues of our case will not set a precedent for others to barter a new trial. Why? (CDAA likely did not tell the AG’s office as they lobbied to get it to write an amicus brief in support of their unlawful activities in Sierra County) Why? In other counties the other deputy DA’s are government employees. The CDAA gang is non-government employees, a big difference.

When I learned about the admissions by a CDAA employee about the plight of real deputy DA’s, I too became concerned. It is my intentions to improve the law not find a reason for others to circumvent real crime. I telephoned my old attorney, who represented me in Santa Barbara in 1969. He is a Superior Court judge now. I explained the situation (he knew about the criminal indictment filed against me and the mine). He said, “Mike, that is not your problem or concern. Do what you need to do. Let the legal ramifications fall where they will.” It was free advice and good advice. What are the next steps to take?
 By Rick

10/17/2006  9:55PM

The Amicus Brief is a great title for a new best selling fiction novel. (For the record, consider the title now declared copywritten by me.)

All that aside, I am struck by the complete ambiguity of how the brief filed by the sworn AG of our State of California et al assumes that the CDAA in this case believes that as defendant it is a representative of the people, aka District Attorneys, elected with jurisdiction to represent.

"We the people" look at it this way. We don't consider that un-sworn appointments trump representation in any case. Why would we?

The prosicurtorial immunity for representational office is respected from us, the private sector, because we understand the functional role it plays. We want our representation to be true to form.

Non-representational definition of a public official is not right, and should never be immune from a punitive position. Stated above, it is in direct conflict with intent. The AG in this brief assumes we believe such appointment of the defendant CDAA to be a legal representation. Clearly, it is not.

Isn't this designation the entire argument?

Yes, it is.

This speaks to the direct issue of representation under Constitutional authority.

To all of you lawyers out there, this is what we the people are most concerned about: The Intent Of The Law.
 By SCOOP

10/17/2006  2:25PM

Here is the AMICUS CURIAE BRIEF from the Attorney General Mike was referring to:
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Third Appellate
No. C051696

MILLER, et al.,
Plaintiffs and Respondents,
v.
FILTER, et al.,
Defendants and Appellants.

On Appeal From
Sierra County Superior Court Case No. 6293
The Honorable Stanley C. Young, Judge

AMICUS CURIAE BRIEF OF THE STATE OF CALIFORNIA,
EX REL. ATTORNEY GENERAL BILL LOCKYER
IN SUPPORT OF APPELLANTS

BILL LOCKYER
Attorney General of the State of California
TOM GREENE
Chief Assistant Attorney General
MARY E. HACKENBRACHT
Senior Assistant Attorney General
WILLIAM N. BRIENGER
Deputy Attorney General
State Bar No. 121346
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 324-2512
Fax: (916) 327-2319

Attorneys for Defendants and Appellants

TABLE OF CONTENTS
STATEMENT OF INTEREST 1
STATEMENT OF THE CASE 2
ARGUMENT 3
I. PROSECUTORIAL IMMUNITY IS IMPORTANT TO IMPARTIAL LAW ENFORCEMENT 3
II. PROSECUTORIAL IMMUNITY IS BROADLY INERPRETED. 5
A. What conduct is immunized? 5
B. Who is Entitled to Immunity? 6
C. What Claims Are Barred? 7
III. IN THIS CASE, THE PROSECUTORS WERE PERFORMING FUNCTIONS THAT ENTITLE THEM TO IMMUNITY. 7
IV. THE COURT OF APPEAL HAS POWER TO CORRECT THE TRIAL COURT’S ERROR REGARDING IMMUNITY. 9
CONCLUSION 9
TABLE OF AUTHORITIES
State Cases:
American Arbitration Assn. V. Superior Court(1992) 8 Cal.App.4th 1131 2
Amylou R. v. County of Riverside(1994) 28 Cal.App.4th 1205 6, 7
Baughman v. State of California(1995) 38 Cal.App. 4th 182 6
Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d. 175 6
Buford v. State of California
(1980) 104 Cal.App.3d 811 9
Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887 6
County of Ventura v. Barry
(1929) 207 Cal. 189 8
Greene v. Zank (1984) 158 Cal.App.3d 497 3, 8
Hardy v. Vial (1957) 48 Cal.2d 577 4
Howard v. Drapkin(1990) 222 Cal.App.3d 843 5, 6
Ingram v. Flippo(1998) 74 Cal.App.4th 1280 4
Jager v. County of Alameda
(1992) 8 Cal.App.4th 294 7
Jenkins v. County of Orange
(1989) 212 Cal.App.3d 278 7
TABLE OF AUTHORITIES
State Cases: Page
Johnson v. City of Pacifica
(1970) 4 Cal.App.3d 82 2
Kayfetz v. State of California(1984) 156 Cal.App.3d 491 6
Kemmerer v. County of Fresno
(1988) 200 Cal.App.3d 1426 passim
Pearson v. Reed (1935) 6 Cal.App.2d 277 1, 4
People ex rel. Clancy v. Superior Court(1985) 39 Cal.3d 740 3
People v. Kempley(1928) 205 Cal. 441 8
Thiele v. RML Realty Partners
(1993) 14 Cal.App.4th 1526 6
Tur v. City of Los Angeles(1996) 51 Cal.App.4th 897 7
Federal Cases:
Ashelman v. Pope(9th Cir. 1986) 793 F.2d 1072 5, 6
Butz v. Economou(1978) 438 U.S. 478 8
Coverdell v. Department of Health and Social Services
(9th Cir. 1987) 834 F.2d 758 3, 7
Forrester v. White(1988) 484 U.S. 219 5
TABLE OF AUTHORITIES
Federal Cases: Page
Gregoire v. Biddle(2d Cir. 1949) 177 F.2d 579 4
Horwitz v. Bd. of Medical Examiners(10th Cir. 1987) 822 F.2d 1508 6, 8
Imbler v. Pachtman(1976) 424 U.S. 409 3
Pierson v. Ray(1967) 386 U.S. 547 3
Stewart v. Minnick(9th Cir. 1969) 409 F.2d 826 6, 7
Rules of Court:
California Rules of Court,
rule 13 (c)(6) 1
Statutes:
Code of Civil Procedure § 425.16 2
Government Code
§ 820.2 4
§ 821.6 passim
§ 24102 sub. (a) 2
Other Authorities:
California Constitution
art. V, § 13 1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
MILLER, et al.,
Third Appellate
Plaintiffs and Respondents, No. C051696
v.
FILTER, et al.,
Defendants and Appellants.
STATEMENT OF INTEREST
The Attorney General files this brief in support of Appellants pursuant to California Rules of Court, rule 13 (c)(6). The California Constitution gives the Attorney General “direct supervision over every district attorney,” and further charges the Attorney General to assist any district attorney when required by the public interest. (Cal. Const. art V, § 13.) To assist district attorneys, the Attorney General files this brief to underscore the importance of prosecutorial immunity in fostering unflinching and impartial law enforcement.
The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict?
(Pearson v. Reed (1935) 6 Cal.App.2d 277, 287.) Although California courts have consistently applied prosecutorial immunity in a broad fashion, focusing on the functions being performed rather than procedural niceties, the trial court in this case denied immunity, focusing on technical details regarding the prosecutors’ appointments as deputies, and ignoring the prosecutorial function they performed. In the interest of firm and fair law enforcement, the Attorney General respectfully asks this Court to correct that error.
STATEMENT OF THE CASE
The elected district attorney of Sierra County appointed four deputies in 2001 and 2002; each signed an oath of office and took an oral oath administered by the Superior Court. [2 CT 422-423, 436-437, 442-443; 3 CT 450.] Despite a requirement in section 24102, subdivision (a) of the Government Code, no written documents appointing the four prosecutors were filed with the county clerk.
The four prosecutors [Appellants] played various roles investigating and prosecuting plaintiffs [Respondents] following the death of a mineworker whom plaintiffs employed. The investigation culminated in a grand jury indictment charging manslaughter. The Superior Court dismissed the indictment [CT 88], and a newly elected district attorney chose not to refile any charges. Plaintiffs filed a civil suit seeking over $51 million for malicious prosecution and other torts from the prosecutors who worked on the case. [1 CT 1375.] 1/
Based in part on the prosecutorial immunity set forth in Government Code section 821.6, the prosecutors filed demurrers and a motion to strike under the anti-SLAPP provisions of Code of Civil Procedure section 425.16; those attempts at a quick resolution failed. Insofar as the demurrers were based on claims of immunity, they were overruled. [CT 19, 28, 118, 130.] In denying the motion to strike pursuant to section 425.16, the court below again concluded that the
1. This brief focuses on four individual prosecutors. Any liability of the fifth defendant, the California District Attorneys Association, would be derivative liability based on the actions of its four employees. If an employee is immune under Government Code section 821.6, so to is the employer. (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1435; Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82 [demurrer without leave to amend]. Cf. American Arbitration Assn. v. Superior Court (1992) 8 Cal.App.4th 1131, 1134 [“Not extending immunity for these act to the AAA, an entity as indispensable to the arbitrator’s job of arbitrating as are the courts to the judge’s job of judging, would frustrate the purpose and effectiveness of arbitral immunity.”].)
prosecutorial privilege did not apply. [CT 2779-2780] This appeal followed.
ARGUMENT
The purpose of providing immunity for prosecutors and judges is to provide a prompt procedural escape hatch, so that public servants are not exposed to time-consuming personal attacks based on their public service. Lawsuits against prosecutors or judges have the potential to chill the exercise of discretion meant to be exercised on the public’s behalf.
In this instance, the record is sufficiently well developed to allow a court to conclude that the four individual defendants [Appellants] are entitled to a dismissal of the action based on their immunity from civil suit. This Court has discretion to make that order or to remand the matter for further proceedings consistent with a declaration regarding the scope of prosecutorial immunity. In light of the time since this action was first filed, we encourage this Court to enter an order of dismissal.
I. PROSECUTORIAL IMMUNITY IS IMPORTANT TO
IMPARTIAL LAW ENFORCEMENT.
Our judicial system demands prosecutorial neutrality. (People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740.) That neutrality must be shielded from any concern that a particular defendant is too rich, too powerful, too popular, or simply too litigious to call to account. Prosecutorial immunity has long been recognized at common law. It is based on the same considerations that underlie common-law immunities of judges and grand jurors (Imbler v. Pachtman (1976) 424 U.S. 409, 422-423), namely to prevent intimidation and foster “principled and fearless decision-making.” (Pierson v. Ray (1967) 386 U.S. 547, 554; see also Greene v. Zank (1984) 158 Cal.App.3d 497, 507.) Such immunity is absolute, rather than merely qualified. (Imbler v. Pachtman, supra, at 422; Coverdell v. Department of Health and Social Services (9th Cir. 1987) 834 F.2d 758, 762.)
California courts have recognized immunity for prosecutors as quasi-judicial officers. (See, e.g, Pearson v. Reed, supra, 6 Cal.App.2d 277.) Explaining the policy underlying the doctrine of absolute immunity, the California Supreme Court borrowed from Judge Learned Hand’s ruling that a federal prosecutor’s immunity “is absolute and is grounded on principles of public policy.” (Gregoire v. Biddle (2d Cir. 1949) 177 F.2d 579, 580.)
‘It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. … In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’
(Hardy v. Vial (1957) 48 Cal.2d 577, 582-583, quoting Gregoire v. Biddle, supra, 177 F.2d at 581.)
Since the enactment of a more specific prosecutorial immunity in 1963, most cases have centered on Government Code section 821.6.2/
2. In the absence of any meaningful distinction between the policies and operation of the immunities for judicial, prosecutorial, and discretionary functions, we do not separately analyze this case under alternative bases of immunity. We note that the more general “discretionary function” immunity provided by Government Code section 820.2 also applies in circumstances where section 821.6 applies. (Ingram v. Flippo (1998) 74 Cal.App.4th 1280, 1292-1293.) Moreover, as quasi-judicial officers, prosecutors also share in judicial immunity. (Pearson v. Reed, supra, 6 Cal.App.2d 277, 282-287.)
Government Code section 821.6, commonly referred to as the “Prosecutor’s Immunity,” provides:
A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.
The public is best served when public servants are free from fear. As the Court of Appeal has noted, exposure to civil litigation would result in timidity that would be hard to detect. (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 852 [discussing quasi-judicial immunity of a court-appointed psychologist].) That rationale applies with equal force in the case of prosecutors. In fact, prosecutorial timidity would be even harder to detect, because many prosecutorial decisions are made in private. In any event, someone wrongly accused by a criminal prosecutor is protected by a trial judge, a jury, and the appellate courts.
II. PROSECUTORIAL IMMUNITY IS BROADLY
INTERPRETED.
The strong underlying policies “favor a liberal application of immunity.” Achelman v. Pope (9th Cir. 1986) 793 F.2d 1072, 1078. The cases discussed below reflect the immunity’s breadth.
A. What conduct is immunized?
Immunity attaches to certain functions -- investigating, accusing, prosecuting, and judging -- regardless of a person’s title. To determine whether an action was in an arena sheltered by absolute immunity, courts look at “the nature of the function performed, not the identity of the actor who performed it.” (Forrester v. White (1988) 484 U.S. 219, 229.)
Moreover, section 821.6 comprehensively immunizes conduct incidental to all stages of the adjudicative process. (Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887, 889 [publicizing wrongdoing]; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-1437 [initial investigation]; Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d 175,178 [investigation]; Baughman v. State of California (1995) 38 Cal.App.4th 182, 191-192 [search]; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-1211 [acts “incidental to the investigation”]; Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 494 [publication of disciplinary action].)
Judicial immunity is similarly broad, barring “civil actions against judges for acts performed in the exercise of their judicial functions and it applies to all judicial determinations, including those rendered in excess of the judge’s jurisdiction, no matter how erroneous or even malicious or corrupt they may be.” (Howard v. Drapkin, supra, 222 Cal.App.3d at 851. See, e.g., Ashelman v. Pope, supra, 793 F.2d at 1078 [conspiracy between a judge and prosecutor to predetermine outcome did not vitiate immunity]. See also Thiele v. RML Realty Partners (1993) 14 Cal.App.4th 1526 [arbitral immunity broadly interpreted].)
B. Who Is Entitled to Immunity?
Prosecutorial immunity has been applied to a wide range of persons whose roles are “functionally comparable” to that of an investigator or prosecutor. It is the process which triggers the immunity; those involved in the process are immunized. See, e.g., Horwitz v. Bd. Of Medical Examiners (10th Cir. 1987) 822 F.2d 1508, 1515 [doctors serving on professional discipline board]. “The immunity conferred by section 821.6 is not limited to peace officers and prosecutors but has been extended to public schools officials . . ., heads of administrative departments . . ., social workers . . ., county coroners . . ., and
members of county boards of supervisors . . . .” (Tur v. City of Los Angeles (1996) 51 Cal.App.4th 897, 901 [internal citations omitted]. See also Coverdell v. Department of Health and Social Services, supra, 834 F.2d 758 [child services worker]; Kemmerer v. County of Fresno, supra, 200 Cal.App.3d at 1436 [immunity under section 821.6 not limited to legally trained personnel]. In similar sweeping fashion, judicial immunity also applies to court clerks and court reporters. (See Stewart v. Minnick (9th Cir. 1969) 409 F.2d 826.)
C. What claims Are Barred?
Although prosecutorial immunity has primarily been applied to defeat suits for malicious prosecution, it is not limited to such suits. The courts have held it also applicable to actions for libel, slander, negligence, and inflictions of emotional distress, among others. (Kemmerer, supra, 200 Cal.App.3d at 1436; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278.) The immunity provided by section 821.6 is not even limited to claims brought by targets of prosecution. (See, e.g., Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at 1211-1213 [crime victim]; Jager v. County of Alameda (1992) 8 Cal.App.4th 294 [mother dissatisfied with district attorney’s child support collection from father].)
III. IN THIS CASE, THE PROSECUTORS WERE
PERFORMING FUNCTIONS THAT ENTITLE
THEM TO IMMUNITY.
Appellants simply acted as prosecutors – presenting evidence to a grand jury and taking other steps to initiate the prosecution of the Respondents – and deserve the immunity that applies broadly to all who participate in the investigation and prosecution of suspected crime. The trial court’s focus on the details of the prosecutor’s technical standing ignored the core of immunity analysis: examining the function being performed rather than the status of the defendants. As the Court of Appeal stated in a judicial immunity case, “[i]n analyzing the immunity
issue in the instant case, we must first characterize the governmental activity involved, because the immunity granted depends not on the status of the defendant, but rather, on the specific work or function being performed.” (Greene v. Zank supra 158 Cal.App.3d at 508, citing Butz v. Economou (1978) 438 U.S. 478, 511-512.)
Respondents likewise ignores the Appellants’ role; Respondents’ position appears entirely based on a clerical oversight by the District Attorney’s office. The record - - that formal appointing papers were not filed - - does not support Respondent’s colorful descriptions of Appellants “impersonating” deputy district attorneys and “tak[ing] over the Sierra County District Attorney’s Office.”
The Attorney General is not aware of any case depriving a public servant of immunity on such hypertechnical grounds, and any such result would be surprising given the breadth and scope of circumstances in which courts have previously found immunity. To the contrary, at least one prior case has applied immunity despite a technicality similar to the one presented by this case. In Horwitz v. Bd. Of Medical Examiners, supra, 822 F.2d 1508, the Court of Appeals held that doctors serving on a board empowered to discipline physicians were entitled to absolute immunity. The fact that all but one of the defendant doctors had failed to sign a required oath of office was deemed insignificant, as the defendants were deemed at least de facto officers. (Id. at 1516.) California also recognizes the de facto officer doctrine. (County of Ventura v. Barry (1929) 207 Cal. 189, 190 [a line on tax assessor’s oath was left blank]; People v. Kempley (1928) 205 Cal. 441, 445-446 [special counsel appointed by Attorney General did not take the oath of office].)
IV. THE COURT OF APPEAL HAS POWER TO
CORRECT THE TRIAL COURT’S ERROR
REGARDING IMMUNITY.
The immunity provided by Government Code section 821.6 is jurisdictional and can be raised for the first time on appeal. (See Kemmerer v. County of Fresno, supra, 200 Cal.App.3d at 1435; Buford v. State of California (1980) 104 Cal.App.3d 811, 826 [governmental immunity is jurisdictional].) In Buford, the court additionally noted that judicial economy favored expeditious resolution of the immunity question by the Court of Appeal, rather than remanding for a subsequent summary judgment. (Buford, supra, 104 Cal.App.3d at 826 n.9.)
CONCLUSION
The purpose of shielding prosecutors from civil suits arising from their work requires a prompt determination in this case that Appellants enjoy immunity. Any shortcoming in the prosecutors’ appointments as deputy district attorneys can best be characterized as a technicality that must yield to the robust public policy favoring prosecutorial immunity. Prosecutors must be free to fearlessly enforce the law on the public’s behalf.
Dated: October 11, 2006.
Respectfully Submitted,
BILL LOCKYER
Attorney General of the State of California
TOM GREENE
Chief Assistant Attorney General
MARY E. HACKENBRACHT
Senior Assistant Attorney General
WILLIAM N. BRIEGER
Deputy Attorney General
Attorneys for Defendants and Appellants
 By Michael Miller

10/14/2006  1:21PM

I just looked at the amicus curiae brief filed by our public servants in the offices of the California attorney General. I agree with the conclusion. Fortunately the law and the facts of this case do not support consideration of the conclusion. I always believed that the highest lawyers in the California scene looked after Californians. This argument does not meet that threshold. So, can we now ask, “For whom does Bill Lockyer, Attorney General of the State of California, Tom Greene, Chief Assistant Attorney General, Mary Hackenbracht, Senior Assistant Attorney General, and William N. Brieger, Deputy Attorney General work for and receive taxpayer money to represent?” Interestingly, the signature page also says, “Attorneys for Defendants and Appellants”. Please explain, someone.

If memory serves me right, Bill Lockyer was a writer of the Slapp stuff when he was a legislature. He above all other lawyers should recognize that the appeal before the California Appellate Court is for the mine and me taking away the constitutional rights of the bad guys. The amicus brief is not consistent with the intent of California LAW. If I am reading this friendly brief right, the signers support lawbreakers. Please explain, someone.

We will try to get this brief on our FORUM on Monday. There are glaring differences in the cases cited and ours. If the public lets this go, I would be shocked. Now is the time to expose the bunch for what they really are or what they really stand for. If they were standing in the street of law, they would barely reach the gutter. Californians expect more for the judicial branch of our free society. Please explain, someone
 By Michael Miller

09/15/2006  1:52PM

A puzzling communication was sent to Klaus (Sixteen to One attorney), who forwarded it to me yesterday. Maybe someone out there can shed some light of the following. Klaus questioned the actual form or process the author of the filing used. I am questioning several other points.
AMICUS BRIEF

Mr. William Brieger, Deputy Attorney General (bar # 121346) filed an Application For Extension Of Time To File Brief with the California Court of Appeal, Third District. He requests additional time to file an Amicus Brief, which he typed on the form, stating it was due on September 8,2006 and wants an extension to October 11, 2006. He did not receive a rule 17 notice and has not received a previous extension. His reason for not filing a stipulation, (which requires specificity), is: “Could not reach party in pro per”. The reason he cites why he needs additional time is, “The length of the record, and unusual issue (regarding prosecutorial immunity) requires more than fourteen days to adequately address in a meaningful fashion.”

Mr. Brieger’s first statement is disingenuous and misleading. You know how much I hate lawyers to misrepresent a position to the court. They can stretch truth or lie to each other, but everyone must protest when they mislead the court. Mr. Brieger likely has a good reason why he wrote that he could not find me. Maybe Brenda Wong, Kathleen Lewis or Rhonda (support staff for Mr. Brieger) were assigned the duty but did not try very hard. None were working today, but all three left a message on their answer machines at the AG’s office: none were in the office or plan to be in the office for a while. I was unable to find out why Mr. Brieger said he could not reach me. I am very easy to find, by the way.

An Amicus Brief results from a third party, unrelated to the case, with a serious interest in supporting one side against the other addressing the court. I tried to get some of the big mining companies to write an Amicus Brief to present to the US Court of Appeals in our appeal with the US Secretary of Labor and MSHA. None seemed interested, even though the issue of a lead miner defined as management would throw the entire domestic mining industry into a tizzy. Fortunately, the Court upheld our position and overturned the Secretary of Labor and those nasty little minds at MSHA without the support of big mining companies.

What do we have here? What is going on? How did Mr. Brieger discover this case? Do you think he is an advocate of the mine or CDAA? Is there a connection between Mr. Brieger, CDAA, Gale Filter or Lloyds of London? I do not know him and neither does anyone associated with the mine, so his interest did not come from me. Now that the AG’s office is aware of the case it could be an invitation to us cite all the laws that were broken by the defendants and others associated with the case. for a review.
 By Michael Miller

08/25/2006  9:30PM

Klaus J. Kolb filed our Brief of Respondent Original Sixteen to One Mine, Inc for the appeal of Tom Knox and his five customers yesterday. Words to tell you my thoughts are not readily forthcoming. Please spend time with the following brief yourself. I encourage you to print it and read it for its clarity, logical progression and above all how Klaus meets and addresses each and every claim raised in Tom Knox’s appeal to the Court. You will get the flavor of how Tom Knox presented his case to the appellate judges from how Klaus framed his argument.

It is an honor to be associated with a member of the California State Bar who has the background, education and personal ethics and integrity to practice law in our great state. Klaus was such a delight at the US Ninth Court of Appeals in San Francisco. If there are oral arguments in Sacramento for this anti-SLAPP motion, I will announce it.

With over 200,000 members of California’s State Bar, you and I know that the majority of these lawyers lack the professional characteristics we Californian should be demanding of them when they go before one of our Courts. Lawyers can lie to or mislead each other but, when they enter the courtroom, our statutes (those passed by the legislative branch) demand that they DO NOT MISLEAD THE COURT. I, along with you, anxiously wait for the day when we see some of these bar members brought before the Court and tried as lawbreakers. We may not have to wait much longer.
 By Michael Miller

08/25/2006  9:28PM

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT


)





BRIEF OF RESPONDENT
ORIGINAL SIXTEEN-TO-ONE MINE, INC.

Appeal From Sierra County Superior Court,
Honorable Stanley C. Young, Judge







KLAUS J. KOLB (SBN 146531)
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Telephone: (916) 558-6160
Facsimile: (916) 492-0598

Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.


INTRODUCTION

The central issue presented in this appeal is whether a private entity and its employees can unlawfully pose as Assistant District Attorneys, maliciously bring criminal charges against individuals and a small corporation, and then use the anti-SLAPP statute to seek immediate dismissal of any lawsuit challenging their conduct, on the ground that the defendants were only exercising their constitutional rights to free speech and petition and are immune as a matter of law for any damages they caused.
The Plaintiff and Respondent in this action, the Original Sixteen-To-One Mine, Inc., was the victim of an illegal attempt by Defendant California District Attorneys’ Association, Inc. (“CDAA”), and several of its employees to effectively take over the Sierra County District Attorney’s office and to maliciously bring unwarranted criminal charges against plaintiffs based on an unfortunate mining accident. Defendants’ attempted criminal prosecution of plaintiffs was ultimately dismissed by the Sierra County Superior Court due to defendants’ misconduct before the grand jury, and the citations initially issued by state and federal mining authorities were eventually either dismissed, found to be non-accident- related, or were invalidated by the Ninth Circuit Court of Appeals as unsupported by substantial evidence. However, defendants’ illegal conduct has had a predictable, severe and ongoing impact on the Original Sixteen-To-One Mine, Inc. (“Mine”), and its president and manager, Michael M. Miller. Among other things, the cash-strapped corporation had to divert limited resources from its business to its defense, and defendants’ malicious prosecution interfered with the Mine’s ability to retain experienced personnel and virtually precluded the Mine from obtaining critical financing, leaving the Mine barely able to survive.
Plaintiffs Original Sixteen-To-One Mine, Inc., and Michael M. Miller sought compensation for the damages they suffered and punitive damages for the defendants’ malicious conduct by filing a civil action for malicious prosecution and related causes of action in Sierra County Superior Court. Defendants responded with demurrers, a motion to disqualify the assigned trial judge, and eventually an anti-SLAPP motion to strike brought against the Original Sixteen-To-One Mine, Inc.,1 all of which were denied below.
On appeal, the CDAA defendants argue that they are entitled to the special protections of the anti-SLAPP statute, California Code of Civil Procedure (“C.C.P.”) section 425.16, because:

Respondents’ Complaint arose out of the Appellants’ protected constitutional activity – participation in a judicial proceeding – and that Respondents cannot succeed in the case at bar because Appellants are protected by both the prosecutorial immunity and the litigation privilege. [Appellants’ Opening Brief at 3.]


Plaintiff Original Sixteen-To-One Mine maintains that the Superior Court correctly determined that defendants’ conduct – impersonating deputy district attorneys and maliciously prosecuting criminal charges against plaintiffs – are not “act[s] in furtherance of a person’s right of petition or free speech under the United States or California Constitution” (C.C.P. § 425.16, subd. (a), (b) and (e)), and therefore do not qualify for the protections of the anti-SLAPP statute. The Sierra County Superior Court correctly concluded that “section 425.16 does not protect conduct that is illegal as a matter of law” (11 C.T. 2778-79)2 – a legal conclusion recently affirmed by the California Supreme Court in Flatley v. Mauro (07/26/2006) 39 Cal. 4th 299, 2006 LEXIS 9074 at 33 (the anti-SLAPP statute “cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.”)
The Sierra County Superior Court also correctly ruled that, even if defendants’ conduct could qualify for the anti-SLAPP procedure,

Defendants’ evidence here fails to meet the required standard of defeating plaintiffs’ claims as a matter of law. There are major factual disputes as to whether defendants can claim to be de fact officers and it is highly questionable that the law cited for the fact that de facto officers may be entitled to absolute immunity of 821.6 applies. ... It is not the law that individuals who are not properly appointed may act as officers and then claim immunities for illegal acts or conduct.


11 C.T. 2780 (Sierra County Superior Court Order, December 1, 2005).
As defendants’ concede in their Appellants’ Opening Brief, defendants anti-SLAPP motion is based entirely on their claimed affirmative defenses of prosecutorial immunity and litigation privilege. Appellants’ Opening Brief (“AOB”) at 1, 29. For purposes of defendants’ anti-SLAPP motion and this appeal, plaintiffs and the Superior Court therefore were entitled to assume that plaintiffs could prove their claims of malicious prosecution and related tort causes of action but for defendants’ affirmative defenses. Defendants properly concede that they bear the burden of proving their affirmative defenses if they are to prevail on an anti-SLAPP motion. AOB at 28-30; Premier Medical Management Systems, Inc., v. California (2006) 136 Cal.App.4th 464, 477. An independent review of the record will confirm the Sierra County Superior Court’s conclusion that defendants have not presented admissible evidence sufficient to prove their affirmative defenses of immunity and privilege as a matter of law – even assuming that defendants’ conduct qualifies them to use the anti-SLAPP procedure in the first place.
STATEMENT OF FACTS

The events and circumstances that give rise to this appeal begin with a sole source contract negotiated between defendant California District Attorneys’ Association (“CDAA”) and the Department of Industrial Relations (“DIR”) of the State of California on March 30, 2001. 3 C.T. 447, 452-465; 9 C.T. 2240-2265 (the “Contract”). The stated purpose of the Contract (3 C.T. 453) was:

[T]o assist prosecutors in rural counties to investigate and prosecute criminal violations of Section 6423 and 6425 of the Labor Code and other crimes pertaining to the enforcement of laws and regulations requiring a safe workplace in rural counties, where the elected District Attorney has requested such assistance. ... [Italics added.]


The Contract describes CDAA as “a private, non-profit association of California’s 58 elected District Attorneys and more than 2,200 Deputy District Attorneys.” 3 C.T. 454. The Contract repeatedly and expressly specifies that:

The employment of all circuit prosecutors, investigators and all other personnel utilized by the California District Attorneys Association in accomplishing the Purpose of this Agreement shall be deemed to be employees of the California District Attorneys Association. The Department of Industrial Relations and the Division of Occupational Safety and Health and the Bureau of Investigations within the Division shall have no obligations, responsibility or liability to or for said employees; nor shall the Department of Industrial Relations, the Division of Occupational Safety and Health or the Bureau of Investigations within the Division or any of its entities or personnel, exercise any control, direction or supervision over said employees of the California District Attorneys Association. [Italics added.]


3 C.T. 456; see also 3 C.T. 453 (“The California District Attorneys’ Association will employ the Circuit Prosecutors ....”)
Under the heading “LOCAL CONTROL AND ASSISTANCE BY ELECTED DISTRICT ATTORNEY,” the Contract provides that:

No District Attorney shall be required to use any Circuit Prosecutor or Circuit Investigator. The Circuit Prosecutors and Investigator shall be employed and supervised by the California District Attorneys Association. Participating District Attorneys will provide offices and administrative support, and will retain charging, filing, and settling authority within each county. [Italics added.]

3 C.T. 456. The Contract also expressly provides that:

[E]lected District Attorneys will, as appropriate, deputize these attorneys and investigator to handle criminal and civil investigations and prosecutions within the respective participating counties.


3 C.T. 453, 455; see also “Single/Sole Source Justification” for Contract, 9 C.T. 2261, 2262: “In order for the Circuit Prosecutors and the Investigator to assist District Attorneys, they need to be deputized by the District Attorneys ....”

The Contract required the State of California to compensate CDAA for actual expenditures incurred in accordance with the rates specified in the Contract, which are listed as $65,000 for each Circuit Prosecutor, plus an additional 25% of the applicable salary for benefits. 3 C.T. 459, 456. The Contract had a term of slightly over two years, with an evaluation of the Circuit Prosecutor program scheduled for June 30, 2003, “to determine whether to continue the project.” 3 C.T. 458.
A few months before CDAA obtained its Contract with the Department of Industrial Relations, a tragic accident occurred at the Original Sixteen-To-One Mine site in Alleghany, Sierra County, California, which provided CDAA with an opportunity to demonstrate its value to the Department of Industrial Relations and to earn substantial fees pursuant to the Contract. 4 C.T. 974-982. On November 6, 2000, Mark R. Fussell, died after he backed a small electric locomotive into an old ore chute. 3 C.T. 467-68; 4 C.T. 821-25. At the time of his accident, Mr. Fussell was an experienced “lead miner” who had been assigned the task of rehabilitating an abandoned portion of the mine, so that other miners could safely begin work there. 4 C.T. 810-11, 821-825, 930-941 (940); 10 C.T. 2446-49, 2454-56, 2467-68.
The unfortunate and tragic death of a miner at the Original Sixteen-To-One Mine naturally and properly resulted in an investigation of the Mine and of the circumstances leading to Mr. Fussell’s death. Although state and federal mine inspectors recognized that a series of mistakes made by Mr. Fussel were the primary cause of his death (RJN3, Exhibit 2, at 2, 4-5; Exhibit 3, at 3-4), it is not surprising that the Mine received citations as a result of that investigation.
On January 12, 2001, the United States Department of Labor Mine Safety and Health Administration (“MSHA”) issued two citations against the Mine for conditions at the Mine that contributed to Mr. Fussell’s fatal accident. 3 C.T. 533-537; RJN Exhibit 2, at 2.
On February 2, 2001, the California Department of Industrial Relations, Division of Occupational Safety and Health (“Cal-OSHA”) issued the Mine one citation consisting of three items described as “General” violations and a second citation described as “Serious,” pursuant to California Labor Code §§6317, 6432. The proposed fines for the “General” citation totaled $710.00; the proposed fine for the “Serious” violation was $12,600.00. 3 C.T. 481-484. Notably, none of the citations charged the Mine or its managers with a “Willful” violation under Labor Code §6425, which could have led to felony criminal charges being filed against the Mine or its management. 3 C.T. 476, 481-484; 4 C.T. 829-830. According to the declaration of the Cal-OSHA supervisor responsible for reviewing the citations (4 C.T. 810, 818, 899-909), Cal-OSHA:

... determined that the facts surrounding the violations that were alleged did not meet the threshold of a willful failure to comply with the law, nor did any evidence support a finding that wilful failure to abate a hazard that presents a risk of injury to employees existed.


As noted above, the Original Sixteen-To-One Mine appealed each of the citations issued by Cal-OSHA and MSHA with respect to the accident. The MSHA citations relating to the accident were ultimately overturned by the United States Court of Appeals for the Ninth Circuit, in a Memorandum decision entered on March 30, 2006 (RJN Exhibit 2). The Ninth Circuit’s decision acknowledges the undisputed fact that Mr. Fussell’s negligence caused his accident, and held that there was not substantial evidence to support MSHA’s attempt to impute Mr. Fussell’s negligence to the Operator of the Mine. RJN Exhibit 2 at 5. The Cal-OSHA citations were ultimately settled after Cal-OSHA reclassified the citations as “Non Accident related” and acknowledged that evidence provided by the Mine indicated that the cause of the accident was that Mr. Fussell was “inattentive just prior to the incident.” RJN Exhibit 3, at 3.
During the time that plaintiffs were seeking administrative and judicial review of the Cal-OSHA and MSHA citations relating to Mr. Fussell’s accident, CDAA apparently initiated its own efforts to investigate and criminally prosecute plaintiffs. On November 16, 2001, the Chief Counsel for Cal-OSHA wrote the following letter to Sharon O’Sullivan, the then-serving District Attorney for Sierra County:
Dear Ms. O’Sullivan:


The report on the above-referenced case is being forwarded to your office pursuant to section 6315 of the Labor Code. Based upon the investigation conducted by the Bureau of Investigations (Bureau), this report is being referred for consideration of criminal charges for violations based upon statutory provisions of the Labor Code.

The Report of Investigation will be presented in person by Gale Filter, Project Director, or Kyle Hedum, Worker’s Safety Circuit Prosecutor, with the California District Attorney’s Association, who are in the process of scheduling an appointment with your office.

Thank you for the opportunity of working with you in referral of this matter so as to make the workplaces safer for the employees of this State.


3 C.T. 465 (Italics added). The letter to Ms. O’Sullivan showed that it was copied to CDAA employees Gale Filter and Kyle Hedum.
According to their declarations, Mssrs. Filter and Hedum followed up on the November 16, 2001 letter with a personal visit to District Attorney (“D.A.”) O’Sullivan’s office in Downieville on November 27, 2001. 2 C.T. 449, 436. It is undisputed that up to the time of this meeting – which took place more than one year after Mr. Fussell’s tragic accident – Ms. O’Sullivan had not requested any assistance from CDAA, nor had she ever given any indication of an intent to criminally prosecute the Original Sixteen-To-One Mine, Inc., or its managers.
In his declaration, Mr. Hedum recounts that during the November 27, 2001 meeting in which CDAA representatives personally “presented” Cal-OSHA’s Report of Investigation to Ms. O’Sullivan, “Mr. Filter asked her whether the District Attorney’s office of Sierra County wished to file criminal charges in connection with Mr. Fussell’s death.” 2 C.T. 436. Mr. Hedum goes on to recount that Mr. Filter then “told Ms. O’Sullivan that CDAA would provide support for the prosecution if Ms. O’Sullivan wished.” 2 C.T. 436. Mr. Hedum declares that Ms. O’Sullivan agreed to both these proposals from Mr. Filter, but that neither Mr. Filter nor Mr. Hedum “made any effort to persuade Ms. O’Sullivan concerning the filing of criminal charges.” 2 C.T. 436.4
However, Ms. O’Sullivan subsequently provided a very different version of what happened to Mr. Miller, on two separate occasions. After Mr. Miller made several attempts to communicate with Ms. O’Sullivan by letter during the summer of 2002, Mr. Miller was finally able to reach Ms. O’Sullivan by telephone. According to Mr. Miller’s sworn declaration:

She [D.A. O’Sullivan] told me that CDAA came to her with a completed investigation proposing to file criminal charges against Michael Miller and Jonathan Farrell [general manager of the Mine at the time of the accident]. She said that she knew nothing about the issue, wanted nothing to do with the issue and saw no crime and told me that was her representation to CDAA. She told me that she disliked CDAA and how they forced their way into Sierra County and how they behaved. She said it was a powerful organization that could do what it wanted. Sharon said she was not participating in the case and my complaint about the dishonest indictment is between CDAA and me. She was very bitter about Larry Allen, a CDAA lawyer, who ran against her and won. She complained that her office was overrun with three CDAA employees. She also said she was leaving as soon as she gets another job.


4 C.T. 810, 812. Mr. Miller also submitted sworn testimony about a subsequent chance meeting he and Mr. Farrell had in person with Ms. O’Sullivan on the courthouse steps, during which Ms. O’Sullivan again “insisted that the case is completely with CDAA lawyers and wished us luck.” 4 C.T. 819-820. Ms. O’Sullivan made similar comments to the local newspaper on July 11, 2002:
Nevertheless, when asked why she had preferred the felony charges, rather than two other criminal complaint options, O’Sullivan told The Messenger “Oh, I don’t know anything about that. You’ll have to ask the California District Attorneys Association lawyer.” 2 C.T. 270; 4 C.T. 778-780.
Ms. O’Sullivan’s few written communications regarding CDAA’s prosecution of plaintiffs is consistent with what she told Mr. Miller in 2002. 4 C.T. 810, 828-30. After three letters from Mr. Miller to D.A. O’Sullivan regarding the CDAA’s criminal prosecution of plaintiffs (4. C.T. 812-13; 839, 840, 841), Ms. O’Sullivan responded with a letter dated and faxed to Mr. Miller on July 18, 2002, in which she wrote:
Dear Mr. Miller:


I am in receipt of both of your letters. You indicated that you are troubled that I have not responded to your written requests. As you know, I am not the prosecutor of record on this case and, therefore, I will not be discussing this case with you. Your correspondence has been forwarded to the prosecutor, Denise Mejlszenkier, who is handling this case. [Italics added.]


4 C.T. 812-13; 843. Ms. Mejlszenkier was a CDAA employee who had graduated from law school in 2000, been admitted to the California State Bar in December 2001, began working for CDAA in January 2002, and was assigned by CDAA to work on the prosecution of plaintiffs in June 2002. 2 C.T. 422, 10 C.T. 2643.
The declarations submitted by defendants in support of their anti-SLAPP motion are also consistent with what Ms. O’Sullivan twice told Mr. Miller. Defendants submitted lengthy declarations from CDAA prosecutors Mejlszenkier, Hedum, Patchett and Filter. 2 C.T. 422, 434, 442, and 3 C.T. 446. Although CDAA’s Contract calls for CDAA to “assist” rural District Attorneys who request such assistance, and although the Contract expressly requires that: “Participating District Attorneys ... will retain charging, filing, and settling authority within each county,” (3 C.T. 453-56), what is conspicuously missing from all four declarations is any evidence that Ms. O’Sullivan played any role in supervising the work of the CDAA attorneys who were prosecuting plaintiffs.
For example, Ms. Mejlszenkier’s declaration recites two conversations with Ms. O’Sullivan before the grand jury presentation, including the conversation in which Ms. O’Sullivan allegedly agreed to appoint Ms. Mejlszenkier, and the conversation in which Mr. Filter allegedly persuaded D.A. O’Sullivan to present evidence to a Grand Jury instead of proceeding with a preliminary hearing before the Court. 2 C.T. 422-424. Mr. Hedum’s declaration recites two conversations with Ms. O’Sullivan, including the one in which Mr. Filter presented the Cal-OSHA report and allegedly offered CDAA’s assistance, and a subsequent conversation in which Ms. O’Sullivan allegedly requested Mr. Hedum to handle the preliminary hearing in a child molestation case. 2 C.T. 434-437. Mr. Patchett recalls meeting Ms. O’Sullivan when she allegedly said she was appointing him as a Sierra County Deputy District Attorney, and several subsequent conversations during the two days that Mr. Patchett was in Sierra County serving as Grand Jury Advisor, including a conversation in which Ms. O’Sullivan invited the CDAA attorneys to use her office during the Grand Jury proceedings. 2 C.T. 442-443. Mr. Filter’s declaration recalls four specific in person conversations with Ms. O’Sullivan, two of which occurred at conferences that both happened to attend. The two substantive discussions referenced in Mr. Filter’s declaration were the initial meeting at which Mr. Filter allegedly suggested a criminal prosecution of plaintiffs and offered CDAA’s assistance, and a subsequent conversation in which Mr. Filter allegedly suggested proceeding with a Grand Jury instead of a preliminary hearing. 3 C.T. 449, 450.
Although all four individual CDAA defendants allege that Ms. O’Sullivan orally appointed them as Sierra County District Attorneys, it is undisputed that no formal appointment documents were ever signed by Ms. O’Sullivan and filed with the county clerk, as required by Government Code §24102, subd. (a). 1 C.T. 11-17, 44-45; 4 C.T. 810, 811-12, 836-37. All four individual CDAA defendants allege that they swore an oath of office, but the oaths were administered and witnessed by the clerk for the Sierra County Superior Court, not by D.A. O’Sullivan. 2 C.T. 422-23, 425; 434, 437, 439; 442, 443, 445; 3 C.T. 446, 450, 592. The clerk of the Court, Ms. Jan Hamilton, confirmed that she received no written authorization to appoint any of the defendants as deputy district attorneys, and she most likely received instructions to administer the oath from Ms. O’Sullivan’s secretary. 8 C.T. 1964-1965. Defendants Mejlszenkier and Hedum also refer to being issued identification cards that referred to them as “Deputy DA” for Sierra County, but none of those identification cards were signed or attested to by Ms. O’Sullivan either. 2 C.T. 423, 425B-1, 441.
Despite the lack of any formal appointments, CDAA employees proceeded to initiate a criminal prosecution of Michael Miller, Jonathan Farrell and the Original Sixteen-To-One Mine. On June 7, 2002, CDAA attorney Kyle Hedum signed a felony complaint against Miller and Farrell. 2 C.T. 437, 440. By this time, D.A. O’Sullivan had lost an election and was serving as a “lame duck” incumbent until newly elected D.A. Larry Allen took could take office in early 2003. 2 C.T. 270, 277, 280, 4 C.T. 810, 812, 827, 992.
A preliminary hearing on the criminal charges was initially set for July 22, 2002. 4 C.T. 813, 840, 979; 9 C.T. 2187. Coincidentally, on July 16, 2002, Gale Filter sent a copy of CDAA’s semi-annual progress report for the Worker Safety Circuit Prosecutor’s Project (“WSCPP”) to Cal-OSHA and the California Department of Industrial Relations. 4 C.T. 827, 974. Filter’s cover letter refers to CDAA’s efforts “to explore the means to secure funding” to continue the WSCPP past its June 2003 expiration date, and the progress report refers to the Sierra County prosecution as an example of CDAA’s progress. 4 C.T. 827, 974- 982 (979).5
On July 17, 2002, Mr. Miller and Mr. Farrell wrote Ms. O’Sullivan to request a postponement of the preliminary hearing so that they could obtain counsel. 4 C.T. 813, 840. Mr. Farrell’s attorney and Mr. Miller both subsequently indicated that they were prepared to proceed with a preliminary hearing, but CDAA attorney Filter “recommended” that the prosecution empanel a Grand Jury instead. 2 C.T. 426; 3 C.T. 450; 4 C.T. 813-14, 844-46. As Ms. Mejlszenkier pointed out in a letter to Mr. Miller (2 C.T. 427-28):

If you are in possession of any exculpatory evidence related to either your own liability or the liability of the Original Sixteen To One Mine, Incorporated, you should provide it to me so that I will be able to present it. You do not have a right to appear and testify before the grand jury. [Italics added.]


On October 25, 2002, Mr. Miller delivered a large envelope of exculpatory evidence to defendants via the court clerk. 4 C.T. 817-18, 827, 859-898, 969-970, 998. On October 28 and 29, 2002, CDAA attorneys Filter and Mejlszenkier presented evidence to the Grand Jury. 2 C.T. 424, 443; 3 C.T. 450. CDAA attorney Patchett served as the Grand Jury Advisor. 2 C.T. 443. The three CDAA attorneys advised the Grand Jury that they were required to present exculpatory evidence to the Grand Jury, but that they had received only one item of exculpatory evidence. 4 C.T. 784-786; 4 C.T. 889-90. The CDAA attorneys made this representation to the Grand Jury even though Ms. Mejlszenkier advised Mr. Filter more than two months earlier that:

Thus far we have no evidence to show that either defendant in the Sixteen to One Mine case knew that chute on the 1700 level of the mine protruded over the track. ... [W]ithout knowing that the chute on the 1700 level restricted clearance, they could argue that their omission (failing to mark it) was not willful. [Italics added.]


4 C.T. 827-88, 998; 8 C.T. 1967-1972; 11 C.T. 2690-92. Despite the concerns she expressed to her boss at CDAA on August 8, on October 28, 2002, Ms. Mejlszenkier argued to the Grand Jury that:

And if one were to call what happened to Mark Fussell on November 6th, 2000 an accident at all, then it was not only an accident that was waiting to happen, it was an accident that was made to happen. ... The evidence will show that the defendant, that the targets of this investigation, Michael Miller, the president of the mine and CEO of Original Sixteen to One Mine, Incorporated, Jonathan Farrell, the manager of Sixteen to One Mine, and the Original Sixteen To One Mine, Incorporated, were aware of dangerous and unlawful conditions in that mine, ....


4 C.T. 782, 10 C.T. 2439,6 10 C.T. 2643-49. Based on the information and argument presented to the Grand Jury, on October 29, 2002, the Grand Jury returned a two count indictment against Michael Miller, Jonathan Farrell and the Original Sixteen-To-One Mine, Inc. 2 C.T. 424, 431-32.
On November 20, 2002, Michael Miller and Jonathan Farrell filed a motion to set aside the indictment on the grounds that CDAA prosecutors Filter, Mejlszenkier and Patchett knowingly and willfully misled the Grand Jury as to the existence of exculpatory evidence and presented the Grand Jury with inadmissible evidence. 1 C.T. 81-87. On February 13, 2003, the Sierra County Superior Court granted the motion to set aside the indictment and dismissed the criminal case. 1 C.T. 88. Newly installed District Attorney Larry Allen declined to file new charges against Miller, Farrell or the Original Sixteen-To-One Mine. 4 C.T. 827, 992-993; 2 C.T. 280, AOB at 2. Plaintiffs filed their original complaint in this action one year later. 1 C.T. 1.
RELEVANT PROCEDURAL HISTORY
Plaintiffs Michael Miller and Original Sixteen-To-One Mine, Inc., filed their original complaint against CDAA and the individual CDAA employees who prosecuted plaintiffs – Gale Filter, Denise Mejlszenkier, Anthony Patchett, and Kyle Hedum (collectively, “CDAA defendants”) – on February 13, 2004. 1 C.T. 1. Defendants responded with a demurrer, claiming absolute immunity as public employees. 1 C.T. 19-26, 28-29. Plaintiffs subsequently filed an amended complaint, to which defendants also demurred. 1 C.T. 94-106, 118-128, 130-132, 173-188. The parties stipulated to permit plaintiffs to file a third amended complaint, which was filed on January 7, 2005. 1 C.T. 197-221, 222-238. The Third Amended Complaint alleges causes of action for malicious prosecution, intentional interference with prospective economic advantage, intentional infliction of emotional distress, negligent infliction of emotional distress and negligent employment and supervision. 1 C.T. 222-238.
On February 28, 2005, Michael Miller took the default of defendants. 1 C.T. 239-240. The Sierra County Superior Court’s Order granting Defendants’ Motion To Set Aside Default was not entered until December 29, 2005. 11 C.T. 2782-84. In the meantime, defendants filed a motion for change of venue (on February 28, 2005), their motion to set aside the default taken by Mr. Miller (on March 7, 2005), and their anti-SLAPP motion to strike (on March 9, 2005). 1 C.T. 241-242; 2 C.T. 244-333; 2 C.T. 334-403; 2 C.T. 404- 3 C.T. 741. Defendants did not file a separate anti-SLAPP motion against Mr. Miller after the default was set aside, and Mr. Miller did not participate in the briefing or hearing on the anti-SLAPP motion that gives rise to this appeal. R.T. 57-121.
On March 28, 2005, defendants filed an “Ex Parte Application For Order Continuing The Date Of Hearing To Hear (1) Motion To Set Aside Default; and (2) Motion To Strike Pursuant To Code Of Civil Procedure Section 425.16,” based in part on their stated intention to file a Motion to Recuse the assigned judge pursuant to C.C.P. §170.1, subd. (a)(1). 5 C.T. 1067-1073. In their motion to continue the hearing date, defendants argued: “That motion to recuse must be heard, based on this new evidence described by Mr. Miller, before the Change of Venue and the Motion to Strike.” 5 C.T. 1071.
Plaintiff’s motion to disqualify the assigned Sierra County Superior Court judge was answered on April 11, 2005, and denied as “specious” on May 23, 2005. 6 C.T. 1578, 1614-1619. The Court rescheduled the hearing on defendants’ motions for change of venue and the anti-SLAPP motion to strike for June 23, 2005, then rescheduled the hearing for the convenience of counsel to July 8, 2005, then rescheduled the hearing several times again on its own motion and due to the death of plaintiff’s former counsel of record in an automobile accident on September 12, 2005. 7 C.T. 1911; 8 C.T. 1960; 10 C.T. 2682; 11 C.T. 2747; R.T. 36-38. Defendants’ anti-SLAPP motion to strike was ultimately heard on November 16, 2005, and denied by the Sierra County Superior Court on December 1, 2005. R.T. 57-121; 11 C.T. 2777-2781. This appeal followed.
ARGUMENT
A. CDAA Defendants’ Unlawful Impersonation Of A District Attorney And Criminal Prosecution Of Plaintiffs Is Not “an act in furtherance of a person’s right of petition or free speech ... in connection with a public issue,” As Defined In The Anti-Slapp Statute.
1. The purpose of the anti-SLAPP statute is to protect the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances, by allowing early dismissal of actions arising from protected activities that do not have even “minimal merit.”

C.C.P. § 425.16, the anti-SLAPP statute, was enacted because the Legislature found that “there had been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances,” and because “[t]he Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” C.C.P. §425.16(a). To address these concerns, the Legislature created a “special motion to strike” to be available in “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue ....” C.C.P. §425.16 subd. (b)(1). As the Supreme Court recently summarized Flatley v. Mauro, supra, 2006 Cal. LEXIS 9074 at *21:

As noted, the purpose of section 425.16 is to prevent the chilling of “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” by “the abuse of the judicial process.” (§425.16, subd. (a).) As a necessary corollary to this statement, because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by section 425.16.
The Legislature obviously did not intend for the anti-SLAPP procedure to apply to every action. The statute therefore sets up a two-step procedure in which the defendant bears the initial burden of making “a threshold prima facie showing that the defendants’ acts, of which plaintiff complains, were ones taken in furtherance of the defendant’s constitutional rights of petition or free speech in connection with a public issue.” Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646.

If – and only if – CDAA defendants show that they are entitled to the protections of the anti-SLAPP statute, then the anti-SLAPP statute requires plaintiffs to present competent and admissible evidence showing “a probability that the plaintiff will prevail on the claim.” Briggs v. Eden Council For Hope & Opportunity, (1997) 19 Cal.4th 1106, 1122 (emphasis added.).

Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning activity and lacks even minimal merit – is a SLAPP, subject to being stricken under the statute.


Navellier v. Sletten (2002) 29 Cal.4th 82, 89. “The anti-SLAPP statute is a procedural statute, the purpose of which is to screen out meritless claims.” Soukup v. Law Offices of Herbert Hafif (7/26/06) 39 Cal.4th 260, at *278.
In this case, CDAA defendants based their anti-SLAPP motion entirely on their affirmative defenses of privilege and immunity. As CDAA defendants recognize (AOB at 29-30), defendants bear the burden of establishing their affirmative defenses.

If defendants have an affirmative defense to a cause of action, they may assert it in the special motion to strike. “[A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense.”


Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 477; see also C.C.P. §437c subds. (o)(2), (p)(2), placing the burden on a defendant to show “that there is a complete defense to that cause of action.”

The burden on a plaintiff of showing “minimal merit” or “a probability” of success is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment. Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907; Flatley v. Mauro, supra, 2006 Cal. LEXIS 9074 at *19; Soukup v. Law Offices of Herbert Hafif, supra, at *24: (“‘Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.’”) . To preserve plaintiff’s right to a jury trial, a court considering anti-SLAPP motion “may not weigh the credibility or comparative probative strength of competing evidence.” Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 105; Briggs, supra, 19 Cal.4th at 1123. As explained in Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823:

In order to satisfy due process, the burden placed on the plaintiff must be compatible with the early stage at which the motion is brought and heard (§425.16, subds. (f) and (g)) and the limited opportunity to conduct discovery (subd. (g)). In order to preserve the plaintiff’s right to a jury trial the court’s determination of the motion cannot involve a weighing of the evidence. [Citations omitted.]

A trial court’s ruling on an anti-SLAPP motion is subject to independent or de novo review by the Court of Appeal. See, e.g., Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.
2. CDAA defendants do not qualify for the protections of the anti-SLAPP statute because they have no constitutional right to illegally impersonate district attorneys or to conduct a criminal prosecution of plaintiffs.


In its recent decision in Flatley v. Mauro (07/26/2006) 39 Cal.4th 299, the California Supreme Court held that:

The Anti-SLAPP Statute Does Not Apply to Speech and Petitioning Activity That is Illegal as a Matter of Law, and Therefore, Not Constitutionally Protected.


Heading “A.” at Flatley, supra, p. 7 (bold print in original). The Supreme Court went on to carefully review and approve of the relevant portions of the Court of Appeal’s decision in Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, and subsequent decisions that adopted the holding of Paul, such as Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty U.S.A., Inc. (2005) 129 Cal.App.4th 1228, 1246.7

In Paul, then, the court discerned that section 425.16, by its express terms, does not apply to any activity that can conceivably be characterized as being “‘in furtherance’” of a defendant’s protected speech or petition rights if, as a matter of law, that activity was illegal and by reason of the illegality not constitutionally protected. In such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied. The rationale is that the defendant cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes section 425.16's purpose “to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§425.16, subd. (a).)” [Italics added; citations omitted.]


The Supreme Court ultimately held:

We agree with Paul that section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition. A contrary rule would be inconsistent with the purpose of the anti-SLAPP statute as revealed in its language. ... Moreover, it would eviscerate the first step of the two-step inquiry set forth in the statute if the defendant’s mere assertion that his underlying activity was constitutionally protected sufficed to shift the burden to the plaintiff to establish a probability of prevailing where it could be conclusively shown that the defendant’s underlying activity was illegal and not constitutionally protected.


Flatley v. Mauro, supra, at *33-35 (citation and quotation omitted).
As in Paul and Flatly v. Mauro, CDAA defendants’ conduct complained of in this case is illegal as a matter of law, and, as a matter of law, is not protected by constitutional guarantees of free speech and petition. CDAA defendants’ conduct therefore does not qualify them to use the anti-SLAPP statute or procedure in this case.
Nothing in the California or U.S. Constitutions provides a private entity with the right to unlawfully cloak itself with the authority and power of the government and to criminally prosecute another citizen. To the contrary, the California Constitution, Article V, §13, reserves to the Attorney General alone the right and power to enforce the laws of this State if a county District Attorney is unable or unwilling to do so:

... Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. ....

Article XI, §1 subd.(b) of the California Constitution provides (in relevant part) that:
The Legislature shall provide for county powers, an elected county sheriff, and elected district attorney, ... and an elected governing body in each county.


The Legislature has adopted a statutes that allows elected county District Attorneys to obtain assistance when they deem it necessary. Government Code §24101 provides that:

Every county or district officer, except a supervisor or judicial officer, may appoint as many deputies as are necessary for the prompt and faithful discharge of the duties of his office.


Government Code §24102 defines exactly what is required for a valid appointment:
An appointee shall not act as deputy until:

(a) A written appointment by the deputy’s principal is filed with the county clerk.
(b) A copy of the appointment is filed with the county auditor, if the auditor has so requested.
(c) The deputy has taken the oath of office.


The Sierra County Superior Court reviewed all of defendants’ evidence and correctly and succinctly concluded:

In this case, the undisputed evidence shows that despite Government Code sections 24101 and 24102 requirement that there be a written appointment, there was no such appointment. Defendants” contention that signing the oath is the “functional equivalent” of a written appointment is unpersuasive. The statute requires a written appointment by the appointing authority. The statute also requires an oath. The oath is not the functional equivalent of the written appointment. Consequently, defendants’ actions were illegal as a matter of law. The motion is properly denied on this ground.

11 C.T. 2779.

On appeal, CDAA defendants argue that their failure to comply with Government Code §§ 24101 and 24102 was not really “illegal,” that the rule of Paul, Huntingdon, and presumably now Flatley v. Mauro, should only be applied to “intentional criminal conduct,” and that defendants “emphatically do not concede their conduct in prosecuting the case on behalf of Sierra county was criminal.” AOB at 24-27. Each of these arguments misses the point.
The decisions in Paul, Huntingdon and Flatley do not define “illegality” in terms of its severity, e.g., whether it could result in imprisonment for more than one year – they define “illegality” in terms of whether or not “the defendant’s underlying activity was illegal and not constitutionally protected conduct.” Flatley, supra at

The rationale is that the defendant cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes section 425.16's purpose “to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§425.16, subd. (a).)”


Paul, supra, as quoted in Flatley, supra, at (emphasis added).
Nor does it matter that CDAA defendants refuse to concede that their conduct was unlawful. A defendant cannot qualify itself for the anti-SLAPP statute merely by refusing to concede the obvious. Both Paul and Flatley recognize that the illegal and constitutionally unprotected nature of a defendant’s conduct can be established either by the defendant’s concession, or because the illegal and constitutionally unprotected nature of the conduct can be “conclusively shown by the evidence.” Flatley, supra, at *29, 33 . Once again, the only inquiry is whether a defendant has carried its burden of showing that its underlying activity was “in furtherance of the defendant’s constitutional rights of petition or free speech ....” Paul, supra, 85 Cal.App.4th at 1364. As the Supreme Court re-explained in Flatley, supra:

A contrary rule would be inconsistent with the purpose of the anti-SLAPP statute as revealed in its language. ... Moreover, it would eviscerate the first step of the two-step inquiry set forth in the statute if the defendant’s mere assertion that his underlying activity was constitutionally protected sufficed to shift the burden to the plaintiff to establish a probability of prevailing ....


Flatley, supra, at (emphasis added).
In the second part of their brief, defendants alternately contend that they complied with the relevant Government Code sections, or that they are entitled to claim the benefits of having complied even if they did not, under the theory that they were at least “de facto” district attorneys. AOB at 32-35. Both of these arguments can be rejected as a matter of law on the undisputed evidence presented to the Superior Court.
CDAA defendants’ restatement of their position that an “oath” is the same thing as “[a] written appointment by the deputy’s principal ... filed with the county clerk,” should be rejected for the same reasons that the Superior Court rejected it below. Government Code §24102 clearly contains at least two separate requirements – one for a written appointment filed with the county clerk, and the second for an oath. As the Supreme Court recently noted in Flatley, supra at *20, “‘[w]here possible we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law ...” [Citations omitted.]


“[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.” In determining that intent, we first examine the words of the respective statutes: “If there is no ambiguity in the language of the statute, ‘then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’


People v. Coronado (1995) 12 Cal.4th 145, 151 (citations omitted).
CDAA defendants have offered no authority or reason for ignoring the plain language of the appointment statute and for collapsing two separate requirements set forth by statute into a single requirement for only an oath. Moreover, CDAA’s attempt to reinterpret the statute defeats its obvious purpose – to require a clear and formal record when a district attorney attempts to delegate his or her powers to someone else. CDAA’s suggested interpretation of the statute encourages exactly the type of ambiguity about who has authority to act on behalf of the government that caused the damages at issue in this case.
CDAA’s fallback “de facto” argument does nothing to convert defendants’ failure to comply with Government Code §24102 into “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” (Flatley v. Mauro, supra at *21) for purposes of the anti-SLAPP statute. In Flatley, the Supreme Court made clear that even privileges such as the litigation privilege – which was previously described as co-extensive with the scope of the anti-SLAPP – “serve quite different purposes” than the anti-SLAPP statute, and do not substitute for an inquiry into whether the conduct at issue as a “valid exercise of constitutional rights of free speech and petition.” Flatley, supra, at *46-47, *50-51. As the Supreme Court explained:

The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from abuse of the judicial process (§425.16, subd. (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. (§425.16, subd. (b)(1).) By necessary implication, the statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 819 [“If the defendant’s act is not constitutionally protected how can doing the act be ‘in furtherance’ of the defendant’s constitutional rights?”].) Thus the rationale for applying the litigation privilege to some forms of illegal conduct – like perjury – because the occasional bad result is justified by the larger goal of access to the judicial process is simply not transferable to the anti-SLAPP statute because the latter statute does not promote the same goals as the former. Moreover, by its very terms, section 425.16 does not apply to activity that is not in furtherance of the constitutional rights of free speech or petition and this would necessarily include illegal activity that falls outside protected speech and petition rights.


Flatley, supra at *51.
The “de facto” doctrine upon which CDAA defendants rely has even less to do with the purposes of the anti-SLAPP statute than does the litigation privilege. Whether or not it applies is simply irrelevant to the inquiry of whether CDAA defendants have met their burden of making the “threshold prima facie showing that the defendants’ acts, of which plaintiff complains, were ones taken in furtherance of the defendant’s constitutional rights of petition or free speech ....” Paul, supra, 85 Cal.App.4th at 1364.
CDAA defendants’ failure to comply with the Government Code sections that define what is required for a valid appointment means that their conduct in impersonating district attorneys was not protected by statute or constitution, and certainly was not “protected by constitutional
guarantees of free speech and petition.” Flatley, supra at . In Flatley, the
Supreme Court noted that “[e]xtortion is not a constitutionally protected form of speech.” Flatley, supra, at *61. Neither is impersonating a district attorney and bringing unwarranted criminal charges against a fellow citizen.
In Flatley, the Supreme Court reviewed the evidence of defendant’s conduct and determined that it “was extortion as a matter of law, and therefore, not constitutionally protected activity for purposes of section 425.15.” Flatley, supra, at *72 Likewise, the undisputed evidence in this case demonstrates, as a matter of law, that the CDAA defendants’ unlawful impersonation of district attorneys was not a “valid exercise of constitutional rights of free speech and petition.” C.C.P. §425.16, subd. (a). The Sierra County Superior Court correctly concluded that, because defendants did not comply with Government Code sections 24101 and 24102 and did not have a written appointment to act as deputy district attorneys, their conduct in initiating and pursuing unwarranted criminal charges against plaintiffs was illegal as a matter of law, and therefore was not protected by constitutional guarantees of free speech and petition, and did not qualify for the protections of the anti-SLAPP statute.
3. CDAA defendants have not carried their burden of meeting the first prong of the anti-SLAPP test – even if the rule of Paul and Flatley did not apply to this case.

The rule of Paul and Flatley discussed above applies when defendants have otherwise met their burden of making a threshold prima facie showing that the conduct complained of arises from speech or petition activity, but the specific activity at issue was illegal, and therefore not constitutionally protected. In this case, however, CDAA defendants have not even carried their burden of making the initial showing that the conduct complained of arises from otherwise protected speech or petition activity.
Subdivision (b)(1) of the anti-SLAPP statute provides that a cause of action “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” shall be subject to a special motion to strike. (Italics added.) Subdivision (e) of the statute then expressly defines the scope of subdivision (b)(1):

As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. [Italics added.]

Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415.

CDAA defendants argue that the “principle thrust or gravamen” of plaintiffs’ complaint is that plaintiffs were damaged as a proximate result of actions CDAA defendants took during the course of judicial proceedings. AOB 22. CDAA defendants go on to assert that the alleged conduct on which plaintiffs base their complaint is “very similar to conduct that has been held in other cases to be protected activity under section 425.16.” AOB at 22-23.
But the “gravamen” of plaintiffs’ complaint is not that CDAA defendants made certain statements during the course of judicial proceedings; the principle thrust of plaintiffs’ complaint is that the CDAA defendants illegally cloaked themselves in the power and authority of the government to bring unwarranted criminal charges against plaintiffs. This case is therefore unlike the allegedly similar cases cited by CDAA defendants, in which a complaint was based on communications preparatory to civil litigation (Briggs, supra) or defendants communicated with the Attorney General (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784) or a federal prosecutor to initiate a potential criminal action (Dickens v. Provident Life Ins. Co. (2004) 117 Cal.App.4th 705, 713-14). In this case, the protected activity engaged in by CDAA defendants after they unlawfully assumed the power of the Sierra County District Attorney’s office – their court appearances and speech about the case – was “merely incidental” to the unprotected conduct. Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at 103. As such, the incidental protected conduct that occurred after CDAA defendants’ unprotected conduct does not subject this action to the anti-SLAPP statute.8
Rather than engaging in free speech or petitioning the government for some action, CDAA defendants took over a portion of the government, and misused the government’s prosecutorial powers to initiate and pursue criminal charges against plaintiffs. The harm suffered by plaintiffs did not occur because CDAA defendants communicated with or petitioned the Sierra County District Attorney; it occurred because CDAA defendants assumed the powers of the elected District Attorney for Sierra County and negated her legal authority to control the criminal proceedings brought against plaintiffs in Sierra County.
As the Supreme Court pointed out in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66:

[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. ... Rather, “‘the act underlying plaintiff’s cause’ or ‘the act which forms the basis for plaintiff’s cause of action’ must itself have been an act in furtherance of the right to petition or free speech.” [Citations omitted; italics in original.]


In Cotati v. Cashman (2002) 29 Cal.4th 69, 76-78, the Supreme Court rejected a defendant’s attempt to invoke the anti-SLAPP statute against a plaintiff who filed a state court action seeking declaratory relief in response to defendant’s pending federal action. The Court of Appeal in Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty U.S.A., Inc.,supra, 129 Cal.App.4th at 1244, restated the Supreme Court’s analysis in the Supreme Court’s companion cases of Equilon, Cotati, and Navellier v. Sletten, supra, as follows:

“[T]he statutory phrase ‘cause of action ... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. ... In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action, but rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 ....)


In this case, the CDAA defendants’ activity that gave rise to plaintiffs’ damages and this action is that defendants unlawfully assumed the powers of the Sierra County District Attorney, in violation of the law and in violation of the express requirements of their Contract with Cal-OSHA. The defendants’ acts underlying plaintiffs’ cause of action do not constitute protected speech or petitioning, they were not committed “before a legislative, executive, or judicial proceeding, or any other proceeding authorized by law,” nor were they made in connection with an issue under consideration or review by such a proceeding, nor were they committed “n a place open to the public or in a public forum ....” Defendants’ acts therefore do not fit within the scope of the anti-SLAPP statute, as defined in C.C.P. §425.16, subd. (e)(1) through (e)(3). Defendants’ underlying acts also not qualify for the “catch all” provision of §425.16 subd. (e)(4), because they were not “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech,” and they were not “in connection with a public issue or an issue of public interest” at the time defendants committed the conduct, more than one year after Mr. Fussell’s unfortunate accident.
Simply put, CDAA has not met its burden of making the “threshold prima facie showing” required by the anti-SLAPP statute before defendants can invoke the protections of that statute. Paul, supra; Equilon Enterprises, supra; Navellier v. Sletten, supra.
B. CDAA Defendants Have Not Proven That They Will Prevail On Their Affirmative Defenses Of Immunity And Privilege As A Matter Of Law.

As noted above, CDAA defendants’ affirmative defenses only become relevant to this appeal if CDAA defendants first meet their threshold burden of showing that the conduct on which plaintiffs base their complaint arises from protected speech or petitioning activity. CDAA defendants have not met that burden. Moreover, CDAA defendants also have not met their second burden of proving their affirmative defenses of privilege and immunity. Because CDAA defendants’ based their anti-SLAPP statute entirely on their affirmative defenses and effectively assumed that plaintiffs had a probability of prevailing absent those defenses, CDAA defendants must prove that they will prevail on their affirmative defenses as a matter of law. Anything less would require the Court to assume that plaintiffs still had a probability of success on their claims, and that their claims therefore had at least the “minimal merit” required to proceed to trial. Navellier v. Sletten, supra, 29 Cal.4th at 89; Soukup v. Law Offices of Herbert Hafif, supra (describing §425.16 as “a summary-judgment-like procedure at an early stage of the litigation”); C.C.P. §437c, subd. (o)(2) and (p)(2), placing the burden on defendants to prove their affirmative defenses to prevail on summary judgment.9 CDAA defendants appear to concede this burden of proof. See, e.g., AOB at 30, 52.
1. CDAA defendants are not government employees and therefore are not entitled to claim prosecutorial immunity under Government Code §821.6.

CDAA defendants argue that “[t]he doctrine of prosecutorial immunity bars every cause of action in the Third Amended Complaint,” and cite Government Code §821.6 as support. AOB at 31.
Government Code §821.6 provides:

A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.


According to Government Code §811.4, “Public employee means an employee of a public entity.”
In its Contract with the DIR, CDAA agreed over and over again that its employees would not be considered “public employees,” and that: “The Circuit Prosecutors and Investigator shall be employed by and supervised by the California District Attorneys Association.” 3 C.T. 456, 453. CDAA defendants clearly do not qualify for prosecutorial immunity under the plain language of Government Code §821.6.
In another attempt to avoid the plain language of a statute, CDAA defendants argue that they are entitled to immunity because they engaged in conduct that would have been covered by the statute, had they been public employees. AOB at 32. The obvious problem with CDAA’s argument is that the statute only confers immunity on “public employees” and CDAA expressly agreed that its employees would not be deemed public employees when CDAA entered into its Contract with the State.
CDAA defendants next argue that, even if they were not public employees, and agreed not to be “deemed” public employees, they still qualify for the prosecutorial immunity reserved for public employees under the “de facto officer doctrine.” AOB at 34. In support of their argument, CDAA defendants cite cases that stand for the general proposition:

“‘The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.’” [Citations omitted.]


Marine Forests Soc. v. California Coastal Com’n (2005) 36 Cal.4th 1, 54; see also People v. Kempley (1928) 205 Cal. 441, 447; Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488, 495; AOB at 28, 34.
Plaintiffs do not dispute the de facto doctrine as recited above. The problem with CDAA defendants’ reliance on the de facto officer doctrine is that it does not apply to this case, because this case does not involve a third person challenge to the validity of the acts done by CDAA within the apparent scope of the district attorney’s office. As the Supreme Court recognized in Marine Forests Soc., supra, 36 Cal.4th at 54-55: “the doctrine contemplates that a valid challenge to the officer’s qualifications must be raised in a separate proceeding.” This action is such a separate proceeding.
This conclusion is also supported by a lengthy review of the rights and duties of “de facto” officers written close to the time of the venerable cases upon which CDAA defendants rely. According to J. Jarrett, “De Facto Public Officers: The Validity Of Their Acts And Their Rights To Compensation,” 9 So.Cal.L. Rev. 189, 220 (1936):

While the acts of an officer de facto are valid insofar as the rights of the public are involved, or the rights of third persons having an interest in them are concerned, yet if a party defends or sues in his own right as a public officer for his protection or benefit, it is not sufficient that he be merely an officer de facto; he must be an officer de jure. That is, when the incumbent is sued for the commission of an act which is criminally or civilly enforceable against the “officer” as such, a defense of de facto status will not be heard, since an “officer” in this capacity includes de facts as well as de jure officers. And when the incumbent is sued for doing an act normally excusable in a de jure officer, the de fact officer can not put up the defense of the immunity of the office, for this defense belongs exclusively to the de jure officer. [Italics added.]

CDAA defendants have cited no California authority that supports their contention that a “de facto” officer is entitled to absolute immunity for his unauthorized and wrongful acts. Branson v. Martin (1997) 56 Cal.App.4th 300, 307, relied on by defendants (AOB at 50), has nothing to do with immunity for “de facto” officers. In Branson,the Court of Appeal noted that “a court commissioner is a government employee and is thus covered by the general grant of judicial immunity. (Gov. Code, §821.6 ...)” Id. The Branson court went on to hold that the commissioner’s acts complained of were not “in the complete absence of jurisdiction,” and were therefore within the scope of his immunity. Id.
CDAA’s attempt to expand the immunity afforded to public employees by statute to “de facto” officers who are not public employees conflicts with the general rule that California courts will not imply immunities if they are not set forth by statute, particularly in the area of purported government actors.

We have also held that, “in governmental tort cases ‘the rule is liability, immunity is the exception’ .... Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.” (Ramos v. County of Madera (1971) 4 Cal.3d 685, 692.


Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-93. CDAA defendants have offered no reason why the “important societal goal of compensating injured parties for damages caused by willful and negligent acts” should be ignored in this case. CDAA’s citation to authorities in other jurisdictions, based on other facts, and other laws and “societal goals” not persuasive. See, e.g., White v. Gerbitz (6th Cir. 1989) 892 F.2d 457, 462 (applying Tennessee law in federal civil rights action). CDAA’s conduct of unlawfully prosecuting California citizens for monetary gain or other ulterior motives is not conduct that should be encouraged. Moreover, CDAA willingly accepted the benefits of a contract in which CDAA promised that its representatives would “be deemed to be employees of [CDAA].” CDAA defendants have offered no reason for the courts to relieve them of their contractual obligations or of their legal obligations to citizens they have injured through their misconduct.
2. CDAA defendants have not carried their burden of proving that they qualify as “de facto” officers as a matter of law.

As CDAA defendants acknowledge (AOB at 35-48), their claim to de facto officer status depends on a number of facts, including the hotly contested factual allegation of whether or not CDAA defendants were acting “under color of a known election or appointment.” See, e.g., Oakland Paving Co. v. Donovan, supra, 19 Cal.App. at 495. As summarized in the “Statement Of Facts” at pp. 5-19 above, plaintiffs have presented evidence that the elected District Attorney of Sierra County never requested CDAA assistance, never authorized or supervised CDAA’s prosecution of plaintiffs, and did not “retain charging, filing and settling authority,” as required by CDAA’s Contract and the California Constitution. Plaintiff’s evidence also allows at least the reasonable inference that CDAA defendants knew that their actions were unauthorized, as evidenced by the admissions of District Attorney O’Sullivan, the circumstances under which CDAA representatives presented themselves to D.A. O’Sullivan, they fact that the Contract expressly required CDAA employees to be properly deputized and to be supervised by elected district attorneys after a district attorney requested assistance from CDAA, and the fact that CDAA represented itself as exclusively well-qualified to accept the Contract to provide assistance to rural district attorneys. 2 C.T. 270,449, 436; 3 C.T. 453, 455, 465, 778-80; 4 C.T. 812-13, 819-20, 829-840, 843; 9 C.T. 2260-2264. Plaintiffs’ evidence, and the reasonable inferences in plaintiff’s favor that can be drawn from that evidence, are enough to demonstrate that plaintiffs have “a probability” of prevailing against CDAA defendants’ affirmative defense of absolute immunity.
CDAA defendants’ attempts to overcome plaintiffs’ evidence are clearly without merit. CDAA defendants first argue that their response to an inartfully drafted request for admission should preclude plaintiffs from contesting a “fact” admitted by defendants. As they concede, C.C.P. §2033.410 provides that: “Any matter admitted in response to a request for admission is conclusively established against the party making the admission ....” The plain language of the statute means that CDAA defendants are bound by their admission, but plaintiffs are not. CDAA argues, without authority, that §2033.410 should be read to mean something other than what the plain language of the statute says, because that plain meaning could not be what the Legislature meant. However, CDAA’s interpretation of C.C.P. §2033.410 is not only contrary to the plain meaning of the statute; it is also contrary to the intent of the Discovery Act. The purpose of a request for admission is to bind the party making the admission; it is not to recreate a “trial by ambush” procedure that results in a forfeiture of the requesting party’s substantive legal rights due to a typographical error in the wording of a discovery request.
CDAA next objects to the oral statements made by District Attorney O’Sullivan as set forth in the declarations of Mssrs. Miller and Russell (2 C.T. 270; 3 C.T. 778-80; 4 C.T. 810, 812,819-20) as hearsay. However, according to Evidence Code (“Ev.C.”) §1222, “Authorized Admissions”:
Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and
(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.
CDAA defendants argue that their criminal prosecution of plaintiffs was at all times conducted pursuant to the direction and control of D.A. O’Sullivan, and have offered declarations of each of the individual CDAA defendants asserting that the conduct complained of by plaintiffs was done pursuant to the direction of D.A. O’Sullivan. See, e.g. 2 C.T. 437, 443; 3 C.T. 450. Pursuant to CDAA defendants’ arguments, D.A. O’Sullivan was therefore clearly authorized by CDAA defendants to make statements about their criminal prosecution of plaintiffs, and her role in it.
CDAA defendants finally attempt to argue that the Court should adopt their interpretation of disputed evidence and the inferences that can be derived from that evidence. AOB 41-42; 44-48. Once again, CDAA defendants are simply wrong. See, e.g., C.C.P. §437c, subd. (c)) (“... summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raises a triable issue as to any material fact.”) For example, past correspondence and previous legal claims by plaintiff Miller do not require a finding that plaintiffs have admitted that CDFA defendants were duly authorized to criminally prosecute plaintiffs. AOB 35-39. Mr. Miller was simply doing his best to protest an unwarranted prosecution, and to exercise his constitutional rights to free speech and to petition the government for redress of his grievances. The fact that defendants were, for a time, successful in impersonating district attorneys should not mean that plaintiffs are deprived of a remedy for the damage they suffered during that time.
In the final analysis, the Sierra County Superior Court got it exactly right when it concisely disposed of CDAA defendants’ assertion that they were entitled to absolute immunity as de facto officers (11 C.T. 2780):

There are major factual disputes as to whether defendants can claim to be de facto officers and it is highly questionable that the law cited for the fact that de facto officers may be entitled to the absolute immunity of 821.6 applies.

2. CDAA defendants have not carried their burden of establishing that their conduct is covered by the litigation privilege as a matter of law.


CDAA defendants acknowledge that the litigation privilege – even if it were otherwise to apply to this case – does not apply to plaintiffs’ malicious prosecution cause of action. AOB at 52; Rusheen v. Cohen, supra, 37 Cal.4th at 1057.
The litigation privilege is codified as part of Civil Code §47.

“The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” Silberg v.Anderson (1990) 50 Cal.3d 205, 212 ....

Rusheen v. Cohen, supra, 37 Cal.4th at 1057.

Plaintiffs have already explained and demonstrated that CDAA defendants were not “participants authorized by law” to initiate or prosecute the criminal action against plaintiffs. At the very least, whether CDAA defendants were “participants authorized by law” is a factual dispute that can only be resolved at trial.
Further, CDAA defendants’ conduct in impersonating district attorneys and initiating and maintaining an unlawful criminal prosecution against plaintiffs goes far beyond what has been considered “communicative conduct” and covered under the litigation privilege in previous cases. See examples summarized in Rusheen v. Cohen, supra, 37 Cal.4th at 1057-58.
CDAA defendants’ conduct in this case is more closely analogous to the facts of Kimmel v. Goland (1990) 51 Cal.3d 202, 206-208, in which plaintiffs unlawfully recorded confidential telephone conversations with defendants in anticipation of litigation. Defendants responded with a cross-complaint in which they alleged injury as result of the illegal taping of the telephone conversations, not from the publication of those broadcasts as part of the litigation. Id. at 209. The Supreme Court held that defendants’ cross-complaint was not barred by the litigation privilege, because:

[T]he result urged by plaintiffs, an extension of section 47(2) to unlawful conduct undertaken to obtain evidence in anticipation of litigation, would lead to unacceptable consequences. ... If a prospective plaintiff, in anticipation of litigation, burglarized defendant’s premises in order to obtain evidence, plaintiffs here would apparently apply the privilege to protect the criminal conduct. Such an extension of section 47(2) is untenable. The instant case and the example are comparable in that both involve violation of a penal statute, and in both cases the offending party seeks immunity from civil liability. In both, the claim must fail.

Kimmel v. Goland, supra, 51 Cal.3d at 212.

As in Kimmel, supra, CDAA defendants’ conduct in this case was unlawful, potentially involved the violation of penal statutes (e.g., Penal Code §182 making it a felony to conspire to falsely and maliciously indict another for a crime), and go far beyond mere communicative conduct. In this case, as in Kimmel, Civil Code §47(2) should not be extended to immunize the offending party’s unlawful conduct.


CONCLUSION

This action by the Original Sixteen-To-One Mine, Inc. and Michael M. Miller raises important issues about the power of a private entity to assume the power and authority that the California Constitution reserves for elected District Attorneys. The legal and factual issues raised are important enough that they should be resolved through the normal process of discovery, motion practice, and, if appropriate, trial.
The California District Attorney’s Association’s attempt to use the anti-SLAPP statute to dismiss this action at its inception is a misuse of that statute. CDAA’s unlawful attempt to criminally prosecute plaintiffs cannot be recast as “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Neither the California nor the U.S. Constitution provides a private entity with a constitutional right to criminally prosecute a fellow citizen.
Since the conduct that gives rise to this action is not constitutionally protected, there is no reason to stretch the scope of the anti-SLAPP statute to force an early determination of plaintiffs’ claims against CDAA. In any event, the Original Sixteen-To-One Mine, Inc., has already presented enough evidence to demonstrate that its claims have at least the “minimal merit” required to avoid an early motion to dismiss. Accordingly, for the reasons set forth above, Respondent Original-Sixteen-To-One Mine, Inc., respectfully requests that the order of the Sierra County Superior Court denying defendants’ anti-SLAPP motion be affirmed.


Respectfully submitted August 24, 2006,

//s//
Klaus J. Kolb
Attorney for Respondent
ORIGINAL SIXTEEN-TO-ONE
MINE, INC.













 By Michael Miller

07/16/2006  1:46PM

Please Access NEWS on this web site for another attorney’s view and position on CDAA and Gale Filter. While his client’s situation is different from ours, he raises some thought provoking issues. Many lawyers have lost faith in the integrity of their profession just as most Americans. One on one I am hearing more complaints by lawyers that fit the CDAA style of courtroom procedures. Next the person pauses and says, “It has been going on for a long time. How can it be stopped?” The option to clean up the courtroom is before all 200,000 members of the California State Bar Association with our lawsuit in Superior Court. Get involved. Spread the word about this Sierra County case. Where is the LA Times? Misleading a grand jury, misleading a judge, preempting the administrative process to prosecute Americans without evidential probable cause, private (non-government) lawyers wanting to be immune form illegal acts, lawyers infiltrating duly elected prosecutors as well as constitutional abuses (SLAPP), should be more interesting to LA Times readers than the deceiving front page article on the mine that was features a few years ago.

Please plough through the motion. Take some action. We need the public and the non-threatened lawyers to step up to the forefront of this battle.
 By Michael Miller

06/30/2006  10:11PM

If you need a refresher on this topic or any other. I recommend you go back to the first entry and read from first to last in order. Better yet, new lawyer lovers and lawyer haters, read the whole factual and proceedural entries dealing with the CDAA affair.

1.

Scenario entitled “Enforcement of Criminal Law Based Upon the Crime of an Officer of the Court Misleading a Judge”. It is a crime in California. Its enforcement and prosecution approach nil. Why?

2.

Misleading a sitting judge (court in session) is something more than a breach in the Lawyer's Code of Ethics. What and which code covers this crime? Do ethics have a place in law anymore?

3.

The bad guys lawyer, Tom Knox, wrote and signed an appeal to the third court of appeals in Sacramento that fails the smell test for legal credibility. The Company’s brief is due on July 11, 2006. It is difficult to read because of its nonsense.

I am not a lawyer and do not approve of a professional code that abuses Californians’ trust in the sanctity of lawyer's behavior. They are State Officers of the Court. It is our third branch of gonvernment and just as important to our freedom as the Executive and Legislative branches. Lawyers who commit perjury before a magistrate, lawyers who knowingly mislead a judge and lawyers who do not approve of these behaviors should speak out. They need to know that the stage is set to continue the game of words. This was how George described it, “Remember, it is a game of words”. We are expanding. I remember.
 By Michael Miller

01/19/2006  2:12PM

On January 18, 2005 the company received a Notice of Appeal, dated January 12, 2005. The defendants are requesting that the Court of Appeals of the State of California, Third Appellate District, toss out Judge Young’s denial of their Motion to Strike pursuant to Code of Civil Procedure Section 425.16. It seems like a specious attempt to drag out time. Why would the defendants want to drag time? Why would Lloyds of London (insurer) want to drag time? Why would defendants’ lawyer want to drag time? It was not unexpected.

Tom Knox must prepare a brief for the Court of Appeals in which he must offer the reasons why Judge Young was mistaken. If the reasons are found to lack judicial substance, monetary consequences are possible. The abuses by everyone connected with defendants are under review with a high-powered microscope. I offer an opinion that this latest attempt to foil justice will meet the same ending as all the defendants’ prior maneuvers. It will be denied.

The company also received the defendants’ Verified Answer to Verified Third Amended Complaint for Damages. It is a boiler-plated denial of any wrongdoing. I am puzzled that Mr. Knox had each defendant verify that each defendant “was employed by the office of the District Attorney of Sierra County”. Not true and not possible according to CDAA’s contract with the State of California.

Tom Knox listed twelve affirmative defenses. Klaus (Sixteen to One attorney) found nothing unusual, pretty typical of insurance funded answers. I am glad they answered and not concerned with their assertions of denial. Number twelve is a fascinating twist by this group of outlaws (not my opinion). It is an “Indemnity and Contribution” defense, which says, “Should Defendants be found liable, it will be due to the activity, primary, culpable conduct on the part of Sierra County and the District Attorney for Sierra County, and Defendants shall accordingly be entitled to indemnity and contribution from those parties”. Can you see the hilarious dichotomy of this posturing? For months they proclaimed they were acting under the law as public prosecutors with the Carte Blanc protection of the government to protect them from violating the law. So what is this defense all about?

Finally, I must tell you about their sixth affirmative defense. Tom Knox tells the court that, “no relief may be obtained under the complaint by reason of the Doctrine of Unclean Hands”. This is another example of how the lawyers are using the courts to fight amongst themselves at the expense of the American public and a new one for me. According to Law.com, unclean hands is “a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had ‘unclean hands’, the complaint will be dismissed or the plaintiff will be denied judgment.” I know the factual circumstances of this case better than anyone and am pondering what the bad guys will cite as unethical behavior by plaintiffs.
 By Wovoka

01/09/2006  7:44PM

Hi Michael:
The CDAA should know the Ghost Dance is still alive in Sierra County. Ah Dan
Chief Wovoka Earthwalker
 By Gold_Fever

01/09/2006  1:04PM

Wow, great article, I sure hope it plays out just as written. Any chance the Mine stock will go pubilc again? Wouldn't that help to generate some capital?
 By gfxgold

01/06/2006  12:50AM

An interesting report and forecast on the price of gold. Go to: http://www.kitco.com/ind/vaughn/jan052006.html
Since the Forum does not automatically create weblinks in the text when typed, highlight the web address (URL) above by holding down your left mouse button and drag the cursor across the web address. When the highlighting is complete, use your right mouse button and click on the highlighted area. A menu will appear. Using your left mouse button, select "Copy." Move the cursor up to the "URL Bar" (web address bar) in your browser and with your right mouse button right click the current web address. A menu will appear. Select "Paste." The new web address is inserted into the URL Bar. Hit the "Enter" button on your keyboard and there you are!
I'm sure that a lot of you already know how to do this however, I recently had a conversation with a forum user who did not know how to do this and was manualy typing the web address in. Remember, the right mouse button is your friend.
 By John Yuma

12/27/2005  10:50PM

Hi Mike:
You say you are refraining from calling the CDAA defendants carpetbaggers and bottom suckers etc. Does this mean that all us blokes have to do the same? These audacious scum bags come to Alleghany Days and brag to themselves in front of others that they are "going to get Miller". After you take all of their money, I hope you have them thrown in jail.
 By Michael Miller

12/14/2005  5:41PM

Jon,

Nice to learn where you are. If any of the lookers, who talked with us had bought into our plans at the Houston oil show, we all would be rolling in gold and profits from the increase in out share value. It seemed like a natural for oilmen to venture into the speculations of gold. The Middle East oil producers sure understand the relationship of gold and black gold. See if you can find some interest in Texas. It seems like a great time for some of those cowboys to become miners.
 By LaFreniere

12/12/2005  4:31PM

It appears that the 16 to 1 had anticipated what is currently happening in the energy and currency markets. Houston
ignored the now obvious...
There still may be time...

Jon E. La Freniere

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