SUPERIOR COURT OF CALIFORNIA,. COUNTY OF.PLUMAS

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, DEFENDANTS [AND CONSOLIDATED CASES- COMPLEX LITIGATION] MOONLIGHT WILDFIRE LITIGATION CASE NO. GN.

1 ENDORSED Plumas Superior Court SUPERIOR COURT OF CALIFORNIA,. COUNTY OF.PLUMAS DEBORAH NORRIE, Clerk of the Court By T.Ph=e=lp~s _ Deputy Clerk CALIFORNIA DEPARTMENT OF FORES1RY AND FIRE PROTECTION, PLAINTIFF v. EUNICE E. HOWELL, individually and doing business as HOWELL'S FOREST HARVESTING, et ai., DEFENDANTS [AND CONSOLIDATED CASES- COMPLEX LITIGATION] MOONLIGHT WILDFIRE LITIGATION CASE NO. GN.CV And Consolidated Cases, Complex Civil Litigation MINUTE ORDER In order to maintain a proper record of communications concerning the Order Modifying Order on Motions to Tax Costs and for Attorney Fees, Expenses, and Sanctions, and Motions Re Privilege [26 Pages] Filed February 4, 2014, the clerk is hereby respectfully directed to lodge with the court the attached correspondence. February 17,2014 ~c~ LESLIE C. NICHOLS JUDGE OF THE SUPERIOR COURT <D. I

2 ENDORSED Plumas Superior Court By FEB 0 4?m4 DEBORAH NOFlRIE, Clerk of the Court T. Phelps Deputy Clerk SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLUMAS CALIFORNIA DEPAR1MENT OF FORESTRY AND FIRE PROTECTION, PLAINTIFF v. EUNICE E. HOWELL, individually and doing business as HOWELL'S FOREST HARVESTING, et al., DEFENDANTS [AND CONSOLIDATED CASES- COMPLEX LITIGATION] MOONLIGHT WILDFIRE LITIGATION CASE NO. GN CV And Consolidated Cases, Complex Civil Litigation ORDER MODIFYING ORDER ON MOTIONS TO TAX COSTS AND FOR ATTORNEY FEES, EXPENSES, AND SANCTIONS, AND MOTIONS RE PRIVILEGE [26 PAGES] FILED FEBRUARY 4,2014 BACKGROUND

The undersigned signed and caused to be filed several orders on February 4, 2014. These acts came at the end of a two- day hearing on noticed motions. The referenced order was read in open court.

3 The undersigned signed and caused to be filed several orders on February 4, These acts came at the end of a two- day hearing on noticed motions. The referenced order was read in open court. By its terms, it is part of and is to be read together with other orders of the court signed and filed the same day. The undersigned, serving on all-purpose assignment, returned home' on February 5, The court received an message, through court specialist judicial secretary, Ms. Therese Phelps [all communications were through Ms. Phelps with notice to all counsel]. It was from Ms. Annie Amaral, counsel at Downey Brand, 'speaking on behalf of all prevailing defendants. It pointed out a clerical error in the order and offered to correct it. It aid of complete transparency, the court has directed, by minute order, that the chains, redundant as they may be, be lodged in the court file. lfthe court has omitted any of the several s, which are repeated in separate communications, the court is convinced that it does not affect the substance of what will be summarized here. In short, Ms. Amaral noted an obvious clerical error in the court's order [Ms. Amaral's February 5, :28 p.m. message]. The court responded and requested counsel to submit an amended order, which corrected the clerical error, noting to Mr. Therese, as always, "Copy all counsel, of course, on this communication." The chain shows that, moments later, the court became aware that deputy attorney general Evan Eichmeyer had responded [February 5, 2014, 2:29 p.m.]. That message stated in part, "Cal Fire does not object to errors being corrected in the judgment." Mr. Eichmeyer did want the matter fully reflected in the record, and the lodging of the communication fulfills that very reasonable request. At the court's request, defendants and Cal Fire each submitted proposed language to correct the clerical error. A number of the s reflect the desire of the court to issue the order as promptly as possible. However, the undersigned had a long scheduled absence from the state from February 6 through February 12,2014, and the court did not want to test its jurisdiction by acting, even by order or fax transmission, from out of state. On return from out of state, the court reviewed the communications and sought the submission of a proposed stipulation and order. Although that was not fortlicoming, the court noted that defendants, by on February 6, 2014 at 10:32 a.m., announced that defendants were amenable to the language proposed by Cal Fire [deputy attorney general Kristin Peer, February 6, 2014 at 9:30 a.m. Ms. Peer had written, in part, "Our suggested edit is to replace Mr. White's name with Mr. Reynolds' name." The suggested language followed that sentence. /.!I. By 10:55 a.m. on February 14,2014 [William Warne's on behalf of'defeudantsjit appeared that the parties had agreed to the edit. However, at 10:56 a.m., Ms. Phelps informed the court that Paul Gordon, outside litigation counsel for Cal. Fire, requested the court not to act until he had a further opportunity to confer with Evan Eichmeyer, deputy attorneygeneral. The court acceded to that request. A short time later, Mr. Eichmeyer sent an to the effect that Cal Fire did not agree to the language I "

4 referenced in defendant's submission. At 2:25 p.m., Mr. Warne agreed that the matter could stand submitted for the court's action. He indicated that he was perplexed, because he correctly noted that the language that was submitted by defendant was the 'very language suggested by Cal Fire's counsel Ms. Peer in her to the Court on February 6, 2014, at 9:30 a.m." Thereafter, Mr. Eichmeyer confirmed that the matter was submitted for the court's action. THE LAW RELATED TO CORRECTING CLERICAL ERRORS IN JUDGMENTS OR ORDERS A brief synopsis of the law of this subject is drawn verbatim from California Judges Benchbook, Civil Proceedings, Trial, Judgments, section (California Center for Judicial Education and Research, 2010, with current supplement). At any time, on his or her own motion or on a party's motion, the judge may correct any clerical errors in the judgment so that it conforms to the judge's decision. CCP 473 (d); People v. Alanis (2008) 158 Cal. App. 4th 1467, '473; Ames v. Paley (2001) 89 Cal. App. 4th 668, 672. The order of correction is generally made nunc pro tunc to the time of the original entry of judgment. See Commonwealth Land Title Co. v. Kornbluth (1985) 175 Cal. App. 3d 518, 531. A judge may correct a clerical error ex parte, without notice, and on the judge's own motion, when the error appears on the face of the record or the existence or the error is dependent on the judge's memory and knowledge. Manson v.lver & Yorkv. Black (2009) 176 Cal. App. 4th 36,44. In this matter, the error is obvious. Names were transposed. The whole order makes the orders obvious, and the court took steps immediately on notice to correct the error. The court invited submissions from counsel, and counsel for defendants agreed to the attorney general's suggested edit. The only delay was occasioned by the court's previously planned travel out of state and the inability of counsel to, notwithstanding agreed language of the modification, to agree on a form of order. Two possible reasons gleaned from the correspondence are Cal Fire's unwillingness to agree that the error was "clerical," and the last minute change in the tenor of the communication, after the language suggested by deputy attorney Kristen Peer, never withdrawn, was agreed to by defendants. That change was suggested in Evan Eichmeyer's last communication after apparent consultation with outside counsel Paul Gordon. The communications from Cal Fire seems to be inconsistent. On the one hand, Kristin Peer suggested the very language to which defendants acquiesced and which the court adopts [Ms. Peers's February 6, at 9:30 a.m.] On the other hand, Evan Eichmeyer [ of February 14,2014 at 11:33 a.m.],"cal Fire does not agree with this

language, although, as noted in my email earlier today, we understand that this is the language the Court wishes to insert in in its Order in place of the existing paragraph on page 22.

5 language, although, as noted in my earlier today, we understand that this is the language the Court wishes to insert in in its Order in place of the existing paragraph on page 22." In fact, at the time of this last referenced , the court had not suggested language. The court was seeking an agreement from counsel. -.. Perhaps the answer to the apparent conflict is that Cal Fire does not want to do anything to suggest is agrees with the content of the paragraph, in any form. The court anticipated this when it sent its February 5 to counsel at 3:28 p.m. as follows: "It is obvious, but I will certainly make clear here, that agreement to correction of the clerical error does not in any way constitute agreement by Cal Fire or its counsel to the correctness of the court's order. I look forward to your early responses. Thank you for your cooperation in completing this process." Mr. Eichmeyer's February 14, :53 a.m. stated in part, "We do not believe it is appropriate for us to comment upon, nor are we in a position to agree to, the changes the Court wishes to make in its order." Again, that language is inconsistent with his co-counsel Ms. Peer's earlier "suggested edit." It thus appears that the court, after seeking input from counsel, is adopting the language suggested by Cal Fire and acquiesced in by defendants, or that Cal Fire, when given an opportunity to do so, offered no suggested language to the court. The former appears more plausible. CalFire appears to have either invited the court's action concerning the correction or waived the opportunity to complain about the clerical error correction. As it relates to the entirety of the order, the order itself makes clear that the party which bore the brunt of the orders would, if it did not come to the table in an effort to bring the - litigation to an agreed conclusion, probably exercise its right to continue the litigation through the appellate process. Whether the change expressed in the language suggested by counsel for Cal Fire, and agreed to by counsel for defendants, is expressed as a modification, amendment, clarification, or correction of a clerical error, is immaterial. The change conforms to the true orders filed February 4, The change does not effect any change in the substantive rights of the parties and does not result from any error of judicial reasoning or determination. It truly corrects a clerical error only. It-is similar to Bree v. Beall (1981) 114 Cal. App. 3d 650, , in which the appellate court properly characterized as clerical error a judgment which incorrectlyspecified.the party against whom judgment was rendered. In this case, the language simply corrects the names, within the lengthy order, of two non-party actors. - GOOD CAUSE APPEARING With respect to the court's 26 page Order on Motions to Tax Costs and for Attorney Fees, Expenses, and Sanctions, and Motions Re Privilege, filed February 4,2014, the court 4

withdraws the first full paragraph set f-orth at page 22, and -commencing with the words, "Among so many acts of evasion..," and substitutes the new paragraph just below, to correct a clerical error.

6 withdraws the first full paragraph set f-orth at page 22, and -commencing with the words, "Among so many acts of evasion..," and substitutes the new paragraph just below, to correct a clerical error. "Among so many acts of evasion, misdirection, and other wrongful acts, one series of events stands out. It is all laid out in the papers and need not be detailed here. It relates to David Reynolds' 'White Flag' testimony. The facts were problematic for Cal Fire. Cal Fire and the United States Government and their legal counsel met with Josh White and Dave Reynolds to discuss it. At a later deposition in this action, Reynolds testified that the white flag "looked like a chipped rock." Counsel for Cal Fire remained mute. It was only later that Defendants found out about the meeting, and, over objection, were permitted to inquire further. When they propounded questions to nail down the date of the earlier meeting, Cal Fire hedged, responding in effect that it didn't have enough time to go through the voluminous record to forthrightly respond. Of course, all it would have taken from Ms. Winsor was a telephone call to her U.S. Attorney counterpart in the federal litigation with an inquiry. "Can you please check your calendar to see if my calendar is correct on the date we all met to discuss the white flag problem?" February 17,2014, Nunc Pro Tunc February 4,2014 LESLIE C. NICHOLS JUDGE OF THE SUPERIOR COURT

, 465 California Street # Suite 310, San Francisco, CA 94104 Phillip R Bonotto, Esq., 1010 Hurley Way # 410, Sacramento, CA 95825 Richard S Linkert, Esq.

7 SUPERIOR COURT OF CALIFORNIA COUNTY OF PLUMAS ENDORSED Plumas Superior Court CLERK'S CERTIFICATE OF SERVICE BY MAIL (CC '----=-=.:- Tracy Winsor, Esq. PO Box , Sacramento, CA Robert Ward, Esq., One Maritime Plaza, Eighteenth Floor, San Francisco, CA Paul Gordon, Esq., 465 California Street # Suite 310, San Francisco, CA Phillip R Bonotto, Esq., 1010 Hurley Way # 410, Sacramento, CA Richard S Linkert, Esq., 3638 American River Drive, Sacramento, CA William R Warne, Esq., 621 Capitol Mall, 18th Floor, Sacramento, CA David H Dun, Esq., 2313 I Street, Eureka, CA P. Terrance Anderlini, Esq., 411 Borel Avenue, Suite 501, San Mateo, CA Kenneth Roye, Esq., 236 Broadway St, #B, Chico, CA Michael Morse, Esq., 1027 Brown Avenue, Lafayette, CA I, Therese Phelps, Deputy Clerk of the above named Court, do certify that I am not a party to the above-entitled cause; that on the date shown below I served the foregoing document, ORDER MODIFYING ORDER ON MOTIONS TO TAX COSTS AND FOR ATTORNEY FEES, EXPENSES AND SANCTIONS, AND MOTIONS RE PRIVILEGE [26 PAGES] FILED FEBRUARY 4, 2014, by depositing a true copy thereof, enclosed in a separate, sealed envelope, with postage thereon fully prepaid, in the United States mail, each of which envelopes was addressed respectively to the persons and addresses listed above. Mailed at Quincy, California Dated: :2-19.;,1 i DEBORAH W. NORRIE, Clerk of the Court By I~/J,(l./J)jp-j:» Deputy Clerk GN CV California Department of Forestry vs. Howell, Eunice E et al

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO DIVISION } } } } } } } } } } } } } } /

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO DIVISION } } } } } } } } } } } } } } / Case :-cv-0-kjm-ac Document Filed 0/0/ Page of 0 California State Bar No. Attorney At Law Town Center Boulevard, Suite El Dorado Hills, CA Telephone: -- Facsimile: -- E-Mail: brian@katzbusinesslaw.com