IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SOLANO. Defendants. ) THE PARTIES

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1 '. 1 6 MILLSTONE PETERSON & WATTS, LLP Attorneys at Law GLENN W. PETERSON, ESQ (SBN 6 Lava Ridge Court, Suite Roseville, CA 661 Phone: Fax: Attorneys for Plaintiff Otto W. Giuliani ENDORSED FILED GWtk Of'the Superior Court JUL O. BUTLEF _.1th 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SOLANO OTTO W. GIULIANI, an individual, Plaintiff, v. KURT HENKE, an individual; DAVIS & RENO, a California general partnership; ALAN DAVIS, an individual; FIRE FIGHTERS UNION LOCAL ~6, INTERNATIONAL ASSOCIATION OF; FIRE FIGHTERS, AFL- CIO, an unincorponited association of persons; ~ and DOES 1 through 0, inclusive, Defendants Plaintiff OTTO W. GUILIANI alleges as follows: j Case No. fc~(~~~ FOR MALICIOUS PROSECUTION (UNLIMITED JURISDICTION. ::.NEDT(. l' ASSIG ~ s Kt~\Cur TUDGE~RR.'-. - for ALL PlJRPOSES ".1 I LLSTONE l'itersoni;" \VATTS. LLI' 6 THE PARTIES 1. Plaintiff Otto Giuliani ("Plaintiff' is an individual and is now, and at all times mentioned in this complaint was, a resident of Tuolomne County, California.. On information and belief, Defendant Kurt Henke ("Henke" is an individual and is now, and at all times mentioned in this complaint was, a resident of Solano County, California.. On information and belief, Defendant Davis & Reno, Attorneys at Law, is a California general partnership with principal business offices in San Francisco County, California.

2 . On information and belief, Defendant Alan Davis is an individual resident of Contra Costa County, California.. On information and belief, Defendant Fire Fighters Union Local, International Association of Fire Fighters, AFL-CIO is an unincorporated association of persons domiciled in Solano County, California. (Defendant Fire Fighters Union Local, International Association of 6 Fire Fighters, AFL-CIO, an unincorporated association of persons, shall be referred to as "Local " The true names and capacities, whether individual, corporate, associate or otherwise, of the defendants named herein as Does 1 through 0, inclusive, are unknown to plaintiff, who therefore sue these defendants by fictitious names. Plaintiff is informed and believes and thereon alleges that each fictitiously named defendant is legally responsible to plaintiff for the 1 acts, transactions and liabilities herein alleged. Plaintiff will amend this complaint to show the true 1 names and capacities of these defendants when they have been ascertained. References herein to one 1 or more defendants shall include Does Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, each ofthe Defendants, including those sued by fictitious names, was acting as the agent, employee and/or partner of each of the remaining Defendants, including those sued by fictitious names, and in doing!the things herein alleged was acting within the course and scope of such agency, employment and/or partnership. 0 FACTUAL ALLEGATIONS 1 8. On or about May, 00, Defendant Henke appeared at a public hearing before the Vallejo City Council. At such time, Defendant Henke was the Assistant Fire Chief for the City of Vallejo ("City" Fire Department as well as the President of Local. During the May, 00 public hearing, Defendant Henke accused Plaintiff, who was then acting as the Interim City Manager, of having' misrepresented to the City Council, in October 00, the terms of a June 00 6 supplemental labor agreement between the City and Local.. Upon hearing of Defendant Henke's accusation and reviewing a video tape of the May, 00 hearing, Plaintiff penned a June, 00, letter ("00 Letter" to City

3 1 Councilmember Anthony Pearsall, the City Council, the City Manager, and the City Attorney, which 00 Letter responded in detail to Defendant Henke's false accusations and requested the City to appoint an independent person to investigate suspected wrongdoing by Defendant Henke Plaintiffs 00 Letter was made available to the public by the City. On or about June, 00, the Vallejo Times Herald published an article concerning Plaintiffs 00 Letter, which stated in part, "Former Interim Vallejo City Manager Otto Giuliani has asked the City Council to hire an independent investigator to look into alleged misconduct by the fire union president Kurt Henke. [f1 The request came after Henke told councilmembers that Giuliani 'mislead' them last year about a supplemental agreement to the firefighters contract.". On or about December 1, 00, Defendant Henke filed a complaint (Case No. FCS008 in this court against Plaintiff, among others, for libel per se, slander per se, violation of privacy rights, conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress (the "Underlying Action". The Underlying Action against Plaintiff was based on Plaintiffs 00 Letter, and ulterior, political motives, and in retaliation for positions previously taken by Plaintiff while he was Chief of Police and City Manager for the City of Benicia, and Interim City Manager for City of Vallejo. 1. Thereafter, Plaintiff filed a special motion to strike the complaint pursuant to Code of Civil Procedure section.. 1. On or about September, 006, this court issued a written decision and order granting Plaintiffs special motion to strike the complaint pursuant to Code of Civil Procedure section.. 1. On,or about November, 006, this court entered a judgment of dismissal in favor of Plaintiff. 1. Defendant Henke subsequently filed an appeal from the judgment of dismissal entered after an order granting Plaintiff s special motion to strike complaint pursuant to Code of Civil Procedure section.. /II /II

4 . On or about October, 008, the California Court of Appeal, First Appellate District, Division Three, affirmed this court's September, 006 order granting Plaintiffs special motion to strike and its November, 006 judgment in favor of Plaintiff. 6. this Complaint. FIRST CAUSE OF ACTION (Malicious Prosecution Plaintiff realleges and incorporates here by reference paragraphs 1 through of 8. At all times relevant to this action, Defendants, and each of them, were instrumental in, directly and actively participated in, authorized, ratified and/or aided and abetted the malicious prosecution of the Underlying Action.. Defendants acted without probable cause in initiating, and thereafter maintaining, 1 the prosecution of the Underlying Action in that they did not honestly, reasonably, and in good faith 1 believe that there were grounds for the Underlying Action. Defendants had no reasonable belief and 1 no credible proof that Plaintiff s 00 Letter was not absolutely privileged under Civil Code section 1, subdivision (b. 0. Defendants acted maliciously in filing and maintaining the Underlying Action in that it was brought and maintained for an improper motive or purpose and/or designed to harass, vex, embarrass or annoy Plaintiff. Moreover, Defendants persisted with the Underlying Action after repeated warnings ahd admonitions that it was frivolous and without merit Asa direct and proximate result of the filing and continued prosecution of the 1 Underlying Action,. Plaintiff has been damaged in an amount not currently known but to be determined according to proof at the time of trial.. Defendants acts were willful, wanton, malicious and oppressive, thereby justifying an award of punitive and exemplary damages. PRAYER FOR RELIEF 6 WHEREFORE, Plaintiff prays judgment against Defendants, and each of them, for the following: 1. For general damages according to proof;

5 such conduct;. For punitive and exemplary damages in an amount sufficient to punish and deter.. For costs of suit; and For such other relief as the Court deems proper. 6 DATED: July [0,00 MILLSTONE PETERSON & WATTS, LLP Attorneys at Law 8 By: ~ON Attorneys for Plaintiff Otto W. Giuliani