SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES ATE: 08/24/15 DEPT, 86 RONORABLE JOANNE ©'DONNELL super) N DIGTAMBATTISTA. [DEPUTY CLERK oT DE LUNA/COURTROOM ASST JONORABLE, sUDGE FRO TEM| ELECTRONIC RECORDING MONITOR 3 NONE Depuy Sheri] BUFORD J. JAMES/CSR 9296 — eparwe 9:30 am/Bcse9145 You — CHARLES EB. WEIR (X) coms GREGORY R, JONES (X) STEMEXPRESS LLC ET AL vs Defendant THE CENTER FOR MEDICAL PROGRESS cowl © CHARLES S. LTMANDRT (X) AL PAUL M, JONNA (x) NATURE OF PROCEEDINGS: ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION Matter comes on for hearing and is argued. The court takes the matter under submission. LATER: The court rules as follows: Plaintiffs’ evidentiary objections to the Declaration of David Daleiden are sustained. Plaintiffs! application for further injunctive relief is denied. The temporary restraining order is dissolved, ‘The Court's fundamental consideration when it assesses the propriety of injunctive relief is the balancing of equities. Robbins v. superior court of Sacramento County (County of Sacramento) (1985) 38 Cal.3d 199, 205; see also Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 266-267 (a claim for injunctive relief is an action in equity, resolved upon equitable principles). In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the likelihood that the petitioner will prevail on the merits of its case at trial, and (2) the interim harm that the petitioner is likely to sustain if the injunction is denied as compared to the harm that the respondent is likely to suffer if the court grants a preliminary MINUTES ENTERED Page 1 of 11 DEPT. 86 08/21/15 COUNTY CLERK Z1/Z@ Ove SUELLTSETZ «= 4OHTT. sTez/TzveeSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pare: 08/21/15 DEPT. 86 HONORABLE JOANNE O'DONNELL sues}, N DIGIAMBATTISTA DEPUTY CLERK J DE LUNA/COURTROOM ASS? HONORABLE, :UDGE PRO Te ELECTRONIC RECORDING MONITOR 3 NONE Depo Sherif] BUFORD J. JAMES/CSR 9296 — Repoue 9:30 am)|Rcseo145 Point? = CHARLES E, WETR (x) Come GREGORY R. JONES (x) STEMEXPRESS LLC ET AL vs Defenaat THE CENTER FOR MEDICAL PROGRESS camel CHARLES S. LIMANDRI (x) AL PAUL M. JONNA (x) NATURE OF PROCEEDINGS: injunction. Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.ath 1279, 1263; Huong Que, Inc, v. Luu (2007) 150 Cal.App.dth 400, 408. Additionally, an injunction will generally not isaue unless the moving party establishes both a real threat of immediate and irreparable interim han (Choice-in-Bducation League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 431) and the inadequacy of legal remedies (Triple A’ Machine shop Vv. California (1909) 213 Cal.App.3d 131, 138). The party seeking the injunction heare the burden of proof. O'Connell v. Superior Court of Alameda County (Valenzuela) (2006) 141 Cal.app.4th 1452, 1482. Proposed Injunction. Plaintiffs seek ig an order that Defendants and parties acting in concert vith them: refrain from (i) any manner of releasing, publishing, disclosing, posting, sharing, uploading, downloading, traneferring, or any other meane of disseminating, including on the website of The Center Medical Progress, located at http: //www.centerformedicalprogress.org, (ii) any file, media, device, or document be it electronic, digital, analog, or physical in nature (iii) that contains or represents a recording of any portion (in whole or part) o£ (iv) any communication (verbal and non-verbal) (v) made by. Catherine Dyer, Kevin Cooksey, or Megan Barr (vi) on the evening of May 22, MINUTRS ENTERED 08/21/15 COUNTY CLERK Page 2o0f 11 DEPT. a6 z1vee Ove Steet9eTZ —LO:TT St0z/ T2789SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pare; 08/21/15 DEPT. 86 HONORABLE JOANNE O'DONNELL wupot), N DIGIAMBATTISTA DEPUTY CLERK J DE LUNA/COURTROOM ASST HONORABLE suDGE PRO Tn [BLECTRONIC RECORDING MONITOR 3 NONE Depuy Sheri] BUFORD J. JAMES/CSR 9296 — Reperwr 9:30 am)BCSa9145 Paint CHARLES 2. WEIR (x) Come! GREGORY R, JONES (X) STEMEXPRESS LLC BT AL vs Defendant, THE CENTER FOR MEDICAL PROGRESS coset CHARLES 3. LIMANDRI (X) AL PAUL M. JONNA (x) NATURE OF PROCEEDINGS: 2015 at approximately between 4:30 p.m. PST and 6:45 p.m. PST (vii) that occurred at, near, or in the vestaurant known as Bistro 33, located at 4364 Town Center Boulevard, El Dorado Hills, California This is a sufficiently definite, specific and clearly prohibitory injunction Probability of Prevailing. Plaintiffs attempt to establish that Defendants! conduct constitutes an invasion of privacy under California Penal Code Section 632. Section 632 prohibits unauthorized recording of confidential conversations, imposing liability for intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or zecording device xecordling] the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio “ Penal Code § 632(a) Plaintiff Dyer testifies that Defendant Daleiéen, using the false identify of "Robert Sarkis," invited Defendants to a business meeting (Dyer Deci., 15-18). Plaintiff Dyer states that she selected the meeting place and chose Bistro 33 because its seating arrangement increases ite privacy (id. 19). MINUTES ENTERED 08/21/15 COUNTY CLERK Page 3of 11 DEPT. 86 21/90 Bud STELLTSETZ —-4BtLT ST9z/T2/80SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pare: 08/21/15 DEPT. 36 HONORABLE JOANNE O'DONNELL suose] N DIGIAMBATTISTA DEPUTY CLERK o DE LUNA/COURTROOM Asst HONORABLE, 2UDGE PROTEM| ELECTRONIC RECORDING MONITOR 3 NONE, Deoay sherit| BUFORD J. JAMES/CSR 9296 — Repore: 30 am|/BC589145 Pai © CHARLES B, WEIR (X) Come! GREGORY R. JONES (x) STEMEXPRESS LLC ET AL vs Detentamt ‘THE CENTER FOR MEDICAL PROGRESS coms! CHARLES $. LIMANDRI (X) AL PAUL M. JONNA {x) NATURE OF PROCEEDINGS: She algo states that she scheduled the meeting for 230 p.m. because the restaurant ie less crowded at that time (4d. ). Dyer testifies that on May 22 the parties were seated in a comparatively isolated ooth in the restaurant, and the restaurant was not cxowded: "Wc were seated in a remote area of the restaurant situated on a secregated floor that had no other diners . . . . [and] the main dining area was virtually empty [except] for us" (id., 30). Dyer testifies that "Tennenbaum" positioned herself "awkwardly" during the conversation and that Daleiden "appeared nervous [and] was visibly perspiring (id., 21). Dyex also testifies that Defendants! line of questioning was unusual, in that their questions emphasized Plaintiffs' fetal tissue Procurement business to the exclusion of more frequently used procurement types (id., 22, 23). Dyer also testifies that she attempted to keep the conversation confidential, stopping the conversation jwhen restaurant staff approached (id., 24) and specifically instructing Tennenbaum to keep her voice down during the conversation so that they would not be overheard (id., 25), Dyer testifies that she informed Defendants that Plaintiffs vould prepare a comprehensive confidentiality agreement that would cover the conversation (id., 26). Dyer testifies that she later identified "Sarkis" ag Defendant Daleiden when she heard Daleiden's voice in a covert video of his conversation with Ds. Deborah Nucatola of Planned Parenthood that MINUTES ENTERED 08/21/15 COUNTY CLERK Page 4 of 11 DEPT. 36 z1/S9 3d SteLtgetZ —-2e:TE stezsIzveeSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pate: 08/21/18 DEPT, 86 MONORABLE JOANNE O'DONNELL spar] N DIGTAMBATTTSTA urury cian J DE LUNA/COURTROOM ASST HONORABLE. JUDGE PHO TEN ELECTRONIC RECORDING MONITOR 3 NONE Depuy Sheil] BUFORD 7. JAMES/CSR 9296 — Reperer 9:30 am|Bcsagi45 Pant CHARLES E, WETR (X) coms! © GREGORY R. JONES (X) STEMEXPRRSS LLC ET AL vs Defendant THE CENTER FOR MEDICAL PROGRESS Comel © CHARLES S$. LIMANDRI (x) AL PAUL M. JONNA (x) NATURE OF PROCEEDINGS; Defendant Center for Medical Progress veleased on or about July 14, 2015 (id., 40), Plaintiff also submits the declarations of Megan Barr and Kevin Cooksy, both of whom were also present at the May 22, 2015 meeting. The Barr and Cooksy Declarations echo Dyer's statemente with Fespect to the seclusion of the conversation, the unusual positioning of Daleiden and Tennenbaum, the content of the conversation, and the measures undertaken to keep the conversation private (Barr Decl., 10-15; Cooksy Decl., 3-7); Opposing the application, Defendant Daleiden admite that he recorded the conversation (Daleiden Decl., 6, 15). Daleiden, however, disputes that the conversation was confidential, essentially contradicting the statements of Barr, Cooksy and Dyer (id., 9-11, 13). The implication of both the moving and responsive Geclarations is that Plaintiffs were not aware that their conversation was being recorded. This evidence sufficiently establishes the elements of a "record [ing] " undertaken “intentionally and without the consent of all parties.” Penal Code § 632(a). The Court thus must determine whether the communication was confidential. The Penal Code defines that term as follows: MINUTES ENTERED 98/21/15 COUNTY CLERK Page 5 of 11 DEPT. 86 21/98 B¥d SIELLISEIZ —4OETT Staz/T2/80SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pare, 08/21/15 DEPT, 86 HONORAMLE JOANNE O'DONNELL wungx| NW DIGTAMBATTISTA DEPUTY CLERK oJ DE LUNA/COURTROOM ASST HONORABLE supes Peo TEM) 'BLECTRONIC RECORDING MONITOR 3 NONE Deouy Stes] BUFORD J. JAMRS/CSR 9296 — Repovee 9:30 am|BCs89145 Putt CHARLES EB, WEIR (X) Comsl GREGORY R. JONES (xX) STEMBXPRESS LLC ET AL vs Detesaant THE CENTER FOR MEDICAL PROGRESS Come © CHARLES S. LIMANDRI (X) AL PAUL M. JONNA (x} NATURE OF PROCEEDINGS: The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desizes it to be confined to the parties thereto, but excludes a communication made in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Penal Code § 632(c) The test of whether a conversation is "confidential" ig an objective one. Coulter v. Bank of America (1994) 28 Cal.App.4th 523, 929. Plaintifes' testimony that the parties were “seated in a remote area of the restaurant situated on a segregated floor that had no other diners" and that "[tjhe main dining area was virtually empty [except] for [them)" is fundamentally undisputed. The sole point of contention between Dyer's and Daleiden's testimony is whether Dyer exhibited concern for the confidentiality of the conversation when the restaurant began to fill up, taking steps to modify the conversation's volume and content, particularly when wait staff approached. Daleiden essentially denies that this happened. Based solely on the factual content of the declarations, the Court cannot determine which party is telling the truth, Although Daleiden's testimony is self-serving, so is the teatimony of Plaintiffs' witnesses. However, Raleiden's concealment of his identity during the MINUTES ENTERED Page 6 of 11 DEPT, 986 08/21/15 COUNTY CLERK Zula Bove STELLISETZ —LOETL StBz/tz/80SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pate: 08/21/15 DEPT. 86 WoNoRABLE JOANNE O'DONNELL supce| N DIGIAMBATTTSTA DEPUTY CLERK J DE LUNA/COURTROOM ASST: HONORABLE, JUDGE PRO TEM ELECTRONIC RECORDING MoNETOR 3 NONE Depuy Sten] BUFORD J. JAMES/CSR 9296 Report 9:30 am|Bose9145 Paint? = CHARLES E. WEIR (X) Couns! = GREGORY R, JONES (X) STEMEXPRESS LLC ET AL vs Defends THE CENTER FOR MEDICAL PROGRESS comm CHARLES S. LIMANDRI (X) Jan PAUL M, JONNA (X) NATURE OF PROCEEDINGS: May 22, 2015 conversation and his admission that he was surreptitiously recording the conversation render hig testimony less worthy of credence than Dyer's. The Court Einds that the conversation was confidential within the meaning of Penal Code Section 632(c) Defendants seek to avail themselves of the exception Penal Code Section 632 concerning the recordation of certain crimes. That exception provides as follows, in relevent part: Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication Erom recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the pergon Penal Code § 633.5 Defendants contend that they “reasonably believed" that they were recording evidence related to the commission of "felon(ies] involving violence against the person," to wit, fetal murder under Penal Code § 187(a) and partial-birth abortion under 18 USC § 1531. The argument is poorly taken. California's murder statute applies to fetal humans, but contains an exception for an act that "was solicited, aided, abetted, ox consented to by the mother of the MINUTES ENTERED Page 7 of 11 DEPT. 86 08/21/15 COUNTY CLERK zivea a9ve StELLISETZ —-La:TT Gtoz/tZ/seSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES DATE: 08/21/15 DEPT, 86 HONORABLE GOANNE O'DONNELL supae] N DIGIAMBATTISTA DRPOTY CLERK J DE LUNA/COURTROOM ASST: HONORABLE 2006 FRO TEM| ELECTRONIC RECORDING MONITOR 3 NONE Deputy Shet| BUFORD J. JAMES/CSR 9295 — Regner 9:30 am)Bcse91as Patt CHARLES FB. WEIR (X) ‘Counsst GREGORY R, JONES (X) STEMEXPRESS LLC ET AL vs Defendane THE CENTER FOR MEDICAL PROGRESS comm © CHARLES S. LIMANDRE (X) AL PAUL M. JONNA (x) NATURE OF PROCEEDINGS: fetus." Penal Code § 187(a) (3). Defendants offer no evidence that any of Plaintiffa' tiseue procurement technicians were acting without maternal consent. Defendants also provide no evidence that they reasonably believed that partial-birth abortiona were being conducted or that violation of the federal statute is a "felony involving violence.” Defendants’ apparent ideological conviction that fetal tissue procurement is a violent felony docs not, without more, rise to the level of a ‘reasonable belief" within the meaning of Penal Code Section 633.5. Accordingly, Defendants have not established the existence of a defense to Plaintiffe' cause of action under Fenal Code section 632. For the foregoing reasons, Plaintifts have jestablished the probability that they will prevail jon theix claim based on Penal Code § 632. This showing, however, does not entitle Plaintiffs to junctive xelief. Although Penal Code section 637.2 rovides a civil litigant a private right of action ang expressly authorizes injunctive relief "to enjoin and restrain any violation of this chapter,” nothing in section 632 and ite related statutes prevents the publication of information unlawfully procured through unlawful privacy violations. deberman v. KCOP Television, ine, (2003) 110 Cal.App.4th 156, 167 ("Penal Code section 632 does not prohibit the disclosure of information gathered MINUTES ENTERED 08/21/15 COUNTY CLERK Page 8 of 12 DEPT. 96 z1sa 30vd STELLISELe = LezTT Staz/IZ/80SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pate: 08/21/15 DEPT. 86 HONORABLE JOANNE O'DONNELL spar) N DIGTAMBATTISTA DEPUTY CLERK 0 DE LUNA/COURTROOM ASST HONORABLE, JUDGE PRO Tra ELECTRONIC RECORDING MONITOR 3 NONE Depay Sheri] BUFORD J. JAMES/CSR 9296 — Reponet Bcse9145 Paint! CHARLES E. W2IR (X) Cow! GREGORY R. JONES (X) STEMEXPRESS LLC ET AL zier ve Defensent THE CENTER FOR MEDICAL PROGRESS Come] © CHARLES S, LIMANDRE (X) AL PAUL M, JONNA (X) NATURE OF PROCEEDINGS: in violation of its terms."). Plaintiffs’ probability of prevailing on their Penal Code Section 632 cause of action, therefore, does not entitle them to the requestéd injunctive relief. Equitable Assessment and Balancing of warms. In addition to establishing the likelihood of prevailing, Plaintiffs also must establish that the interim harm they are likely to sustain if the injunction ig denied is greater than the harm Defendants will suffer if the preliminary injunction is granted. Huong Que, Inc., supra, 150 Cal.App.4th at 408. On this point, Plaintiffs’ application comes into direct conflict with Defendants’ free Speech rights. Plaintiffc' proposed injunction would prevent Defendants from publishing the recorded material from the May 22, 2015 meeting. This proposed injunction would be a prior restraint on Defendants right to free speech under the First Amendment. Wilson Vv. Superior Court of Loe Angolea [county (Watson) (1975) 13 Cal.3d 652, 658; ace also San Diego Unified Port District v. u.s. Citizens Patrol (1998) 63 Cal.App.4th 964, 970 (California's free-speech protections are "more protective, definitive and inclusive of rights to expression of speech than their federal counterparts."), This significantly tilts the balance of harms in favor of Defendants. Blrod v. Burns (1976) 427 U.S. 347, 373 ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes ————_, MINUTES ENTERED | Page 9 of 11 DEPT. 96 08/21/15 COUNTY CLERK 300d SUELLTSEIZ 0:11 STOz/TZ/aaSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES pars, 08/21/15 DEPT. 86 HONORABLE JOANNE O'DONNELL Jupce] N DIGLAMBATTISTA DEPUTY CLERK 9 DE LUNA/COURTROOM ASST HONORABLE {}UDGE PRO TEM ELECTRONIC RECORDING MONITOR 3 | NONE Deputy Suet] BUFORD I. JAMES/CSR 9296 — reporter 2:30 am|Bcseo14s abit’ CHARLES E. WEIR (xX) Comal GREGORY R. JONES (X) STEMEXPRESS LLC ET AL vs Defeat THE CENTER FOR MEDICAL PROGRESS Couns: CHARLES S. LIMANDRI (X) AL PAUL M. JONNA (31) 2 NATURE OF PROCEEDINGS: : irreparable injuzy."). This is true even where the speech is false, defamatory, violative of privacy rights or otherwise tortious in character. Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1147-1148 ("The threatened invasion to [the] right of privacy and the threatened harm to reputation are not the sort of ‘extraordinary cixcumstances' required to justify a prior restraint."); Evans v. Evans (2008) 162 Cal.app.4th 1157, 1168. The harms Plaintiffs assert in their moving papers are generally the harms discussed in Gilbert and are thus insufficient to counterbalance the constitutional harms that the injunction would cause Defendants. Gilbert, 43 Cal.Aop.ath at 3147-1148. Plaintiffs also agsert that there is a potential safety risk involved in releasing the information (byer, 46-47, 51). In support of this assortion, Plaintiff Dyer declares that she fears for her satety if the video is published, and, specifically, that her personal security staff recently indicated that an unknown person had been conduct ing surveillance of her property from the street and her property boundary (id., 47). Dyer'e concerns for her personal safety appear to be based in observable fact. However, as Defendants observe, those threats apparently exist independent of the publication of the videotape as it has not yet been published. Therefore, the potential jeopardy to Dyer and MINUTES ENTERED Page 10 cf 11 DEPT. a6 08/21/15 COUNTY CLERK ZtL vd STELLT9ETZ —LOLTT st0z/TZ/8RSUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Dare: 08/21/15 DEPT, 86 HONORABLE JOANNE 9' DONNELL rupee] N DIGTAMBATTISTA DEPUTY CLERK J DE LUNA/COURTROOM ASST HONORABLE JUDGE FRO TaM| ELECTRONIC RECORDING MONITOR 3 NONE Depuy Shen] BUFORD J. JAMES/CSR 9296 — Repowser 9:30 am|BCse9145 Paint? CHARLES B, WEIR (X) come! GREGORY R. JONES (x) STEMBXPRESS LLC ET AL ws ‘Defendant THE CENTER FOR MEDICAL PROGRESS Couns! CHARLES S. LIMANDRI (X) aL PAUL M. JONNA (x) NATURE OF PROCEEDINGS: Stemexpress employees does not outweigh Defendants! First Amendment rights. A copy of this minute order is faxed to counsel of record as set forth below: CHARLES EB. WEIR: 310-277-4730 CHARLES S. LIMANDRI: 858-759-9938 MINUTES ENTERED Page ii of 11 DEPT. 86 08/21/15 COUNTY CLERK zuet aovd SIELLISEIZ —-LOZTL_ STBz/ 1/88