Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 1 of 29
Charles S. LiMandri (CA Bar No. 110841) Thomas Brejcha, pro hac vice 1 Paul M. Jonna (CA Bar No. 265389) Peter Breen, pro hac vice Jeffrey M. Trissell (CA Bar No. 292480) 2 B. Dean Wilson (CA Bar No. 305844) THOMAS MORE SOCIETY FREEDOM OF CONSCIENCE DEFENSE FUND 309 W. Washington St., Ste. 1250 3 P.O. Box 9520 Chicago, IL 60606 Rancho Santa Fe, CA 92067 Tel: (312) 782-1680 4 Tel: (858) 759-9948 [email protected] [email protected] 5 [email protected] Denise M. Harle (CA Bar No. 275561) 6 ALLIANCE DEFENDING FREEDOM Matthew F. Heffron, pro hac vice 1000 Hurricane Shoals Rd., NE THOMAS MORE SOCIETY 7 Suite D1100 10506 Burt Circle, Suite 110 Lawrenceville, GA 30043 8 Tel: (770) 339-0774 501 Scoular Building [email protected] Omaha, NE 68114 9 Tel: (312) 782-1680 Harmeet K. Dhillon (CA Bar No. 207873) [email protected] 10 Gregory R. Michael (CA Bar No. 306814) DHILLON LAW GROUP INC. 11 177 Post Street, Suite 700 Attorneys for Defendant David Daleiden San Francisco, CA 94108 12 415-433-1700 415-520-6593 (fax) 13 [email protected]
14 Attorneys for Defendant David Daleiden 15 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 17 18 PLANNED PARENTHOOD Case No. 3:16-CV-00236 (WHO) 19 FEDERATION OF AMERICA, INC., et al., 20 Hon. William H. Orrick III Plaintiff, 21 vs. Defendant David Daleiden’s 22 Motion for Summary Judgment 23 THE CENTER FOR MEDICAL PROGRESS, et al., Hearing Date: July 17, 2019, 2:00 p.m. 24 Courtroom 2, 17th Floor 25 Defendants. 26 27 28 PUBLIC VERSION
DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236 Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 2 of 29
1 TABLE OF CONTENTS 2 INTRODUCTION ...... 1 3 LEGAL STANDARD ...... 1 4 ARGUMENT ...... 2 5
6 1. Plaintiffs’ Claim for Violation of Cal. Penal Code § 632 Fails...... 2
7 1.1. Legal Background: California Recording Statute ...... 2
8 1.2. No Standing & No Actual or Reasonable Expectation Conversations Could Not Be Overheard ...... 4 9
1.3. No “Intentional” Recording of Confidential 10 Communications...... 7 11 1.4. No Need for Two-Party Consent ...... 7 12 2. Plaintiffs’ Claim for Invasion of Privacy: Cal. Const. Fails ...... 8 13
2.1. Legal Background on Standing ...... 8 14 2.2. Legal Background on Cal. Const. Art I, § I...... 9 15 2.3. The Cal. Constitution Claims Fail ...... 11 16 17 3. Plaintiffs’ Claim for Trespass at the 2014 NAF Conference Fails ...... 15
18 4. Plaintiffs’ Claim for Common Law Trespass Fails ...... 16
19 5. Plaintiffs’ Claims for Fraud and Conspiracy to Defraud Fail ...... 19
20 CONCLUSION ...... 19 21
22 23 24 25 26 27 28 ii DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 3 of 29
1 TABLE OF AUTHORITIES
2 Cases:
3 Am. Transmission, Inc. v. Channel 7 of Detroit, Inc. 18 239 Mich. App. 695 (2000) 4 Animal Legal Def. Fund v. Wasden 15, 17, 18, 19
5 878 F.3d 1184 (9th Cir. 2018)
6 Ass’n for Los Angeles Deputy Sheriffs v. Los Angeles Times Commc’ns LLC 10, 12 239 Cal. App. 4th 808 (2015) 7 Baughman v. State of California 10 8 38 Cal. App. 4th 182 (1995)
9 Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751-GPC-DHB, 4 2016 WL 3543699 (S.D. Cal. June 29, 2016) 10 Carroll v. Lynch 3 11 698 F.3d 561 (7th Cir. 2012)
12 Celotex Corp. v. Catrett 1 477 U.S. 317 (1986) 13 Conlay v. Baylor Coll. of Med. 16 14 688 F. Supp. 2d 586 (S.D. Tex. 2010)
15 Cnty. of L.A. v. L.A. Cnty. Emp. Relations Comm’n 9 56 Cal. 4th 905 (2013) 16 Desnick v. Am. Broad. Companies, Inc. 18 17 44 F.3d 1345 (7th Cir. 1995)
18 Dominguez v. Babcock 16 727 P.2d 362 (Colo. 1986) 19 Envtl. Processing Sys., L.C. v. FPL Farming Ltd. 16 20 457 S.W.3d 414 (Tex. 2015)
21 Faulkner v. ADT Sec. Servs., Inc. 4 706 F.3d 1017 (9th Cir. 2013) 22 Ferris v. Santa Clara Cty. 13 23 891 F.2d 715 (9th Cir. 1989)
24 Flanagan v. Flanagan 4 27 Cal. 4th 766 (2002) 25 Fleck & Assocs., Inc. v. Phoenix, City of, an Arizona Mun. Corp. 8 26 471 F.3d 1100 (9th Cir. 2006)
27 Fleury v. Harper & Row, Publishers, Inc. 11 698 F.2d 1022 (9th Cir. 1983) 28 iii DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 4 of 29
1 TABLE OF AUTHORITIES
2 Cases:
3 FOAGLA, Inc. v. 7-Eleven, Inc. 11 No. EDCV 14-1432 JGB (SPx), 2014 WL 12601505 (C.D. Cal. Dec. 18, 2014) 4 Food Lion, Inc. v. Capital Cities/ABC, Inc. 15
5 194 F.3d 505 (4th Cir. 1999)
6 Food Lion, Inc. v. Capital Cities/ABC, Inc. 15 964 F. Supp. 956 (M.D.N.C. 1997) 7 Franklin v. Ocwen Loan Servicing, LLC 2, 15 8 No. 18-CV-03333-SI, 2018 WL 5923450 (N.D. Cal. Nov. 13, 2018)
9 Gifford v. City of Colorado Springs 16 815 P.2d 1008 (Colo. App. 1991) 10 Gonzales v. Uber Techs., Inc. 10 11 305 F. Supp. 3d 1078 (N.D. Cal. 2018)
12 Hang On, Inc. v. City of Arlington 8 65 F.3d 1248 (5th Cir. 1995) 13 Hataishi v. First Am. Home Buyers Prot. Corp. 4 14 223 Cal. App. 4th 1454 (2014)
15 Hawthorne v. Fisher 16 33 F. Supp. 891 (N.D. Tex. 1940) 16 Hill v. NCAA 9 17 7 Cal. 4th 1 (1994)
18 Howe v. State 17 10 Ind. 492 (1858) 19 Hunt v. Washington State Apple Advert. Comm’n 8 20 432 U.S. 333 (1977)
21 Illinois Citizens Comm. for Broad. v. F.C.C. 13 515 F.2d 397 (D.C. Cir. 1974) 22 In re Trever P. v. 2, 3, 7 23 14 Cal. App. 5th 486 (Ct. App. 2017)
24 In re Yahoo Mail Litig. 9, 10, 12 7 F. Supp. 3d 1016 (N.D. Cal. 2014) 25 Int’l Fed’n of Prof’l & Tech. Engineers, Local 21, AFL-CIO v. Superior Court 10 26 42 Cal. 4th 319 (2007)
27 Int’l Union v. Dana Corp. 13 278 F.3d 548 (6th Cir. 2002) 28 iv DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 5 of 29
1 TABLE OF AUTHORITIES 2 Cases: 3 Joshua Gamez v. Hilton Grand Vacations Inc. 3 4 No. 2:18-CV-04803 GW (JPRx), 2018 WL 8050479 (C.D. Cal. Oct. 22, 2018)
5 Kearney v. Salomon Smith Barney, Inc. 4 39 Cal. 4th 95 (2006) 6 Keepers, Inc. v. City of Milford 8 7 807 F.3d 24 (2d Cir. 2015)
8 Kurinij v. Hanna & Morton 19 55 Cal. App. 4th 853 (1997)
9 Kyung Park v. Holder 13 10 572 F.3d 619 (9th Cir. 2009)
11 Lake v. Reno 13 226 F.3d 141 (2d Cir. 2000) 12 Lake v. Reno 13 13 533 U.S. 913 (2001)
14 Landry’s, Inc. v. Animal Legal Def. Fund 16 566 S.W.3d 41 (Tex. App. 2018) 15 Lieberman v. KCOP Television, Inc. 2, 15 16 110 Cal. App. 4th 156 (2003)
17 Lilly Indus., Inc. v. Health-Chem Corp. 17 974 F. Supp. 702 (S.D. Ind. 1997) 18 Los Angeles Gay & Lesbian Ctr. v. Superior Court 9, 10 19 194 Cal. App. 4th 288 (2011)
20 Lubetzky v. State Bar 3, 8 54 Cal. 3d 308 (1991) 21 Manela v. Superior Court 10 22 177 Cal. App. 4th 1139 (2009)
23 Mclellan v. State 2 124 Nev. 263 (2008) 24 McCollum v. California Dep’t of Corr. & Rehab. 13 25 647 F.3d 870 (9th Cir. 2011)
26 MD II Entm’t, Inc. v. City of Dallas, Tex. 13 28 F.3d 492 (5th Cir. 1994) 27 Moore v. Telfon Commc’ns Corp. 3 28 589 F.2d 959 (9th Cir. 1978) v DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 6 of 29
1 TABLE OF AUTHORITIES 2 Cases: 3 Nat’l Abortion Fed’n v. Ctr. for Med. Progress 13 No. 15-CV-03522-WHO, 2016 WL 454082 (N.D. Cal. Feb. 5, 2016) 4 Nat’l Ass’n of Letter Carriers, AFL-CIO v. U.S. Postal Serv. 12
5 604 F. Supp. 2d 665 (S.D.N.Y. 2009) 6 Nicholson v. McClatchy Newspapers 19 177 Cal. App. 3d 509 (Ct. App. 1986) 7 NorCal Tea Party Patriots v. I.R.S., No. 1:13-CV-341 11 8 2014 WL 3547369, at *4 (S.D. Ohio July 17, 2014)
9 Northside Realty Assocs., Inc. v. United States 17 605 F.2d 1348 (5th Cir. 1979) 10 Novell, Inc. v. Gribben 8, 9 11 168 F.3d 500 (9th Cir. 1999) 12 Orcilla v. Big Sur, Inc. 19 244 Cal. App. 4th 982 (2016) 13 Overstock.com, Inc. v. Goldman Sachs Grp., Inc. 10 14 231 Cal. App. 4th 471 (2014)
15 Penley v. McDowell Cty. Bd. of Educ. 1 876 F.3d 646 (4th Cir. 2017) 16 People v. Ayers 3 17 51 Cal. App. 3d 370 (Ct. App. 1975) 18 People v. Suite 3 101 Cal. App. 3d 680 (Ct. App. 1980) 19 People v. Superior Court of Los Angeles Cty. 2, 6, 7 20 70 Cal. 2d 123 (1969) 21 Pitts Sales, Inc. v. King World Prods., Inc. 17 No. 04-60664-CIV-COHN, 2005 WL 4038673 (Bankr. S.D. Fla. July 29, 2005) 22 Planned Parenthood Arizona, Inc. v. Brnovich 9 23 172 F. Supp. 3d 1075 (D. Ariz. 2016) 24 Planned Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc v. Smith 13, 14 25 913 F.3d 551 (5th Cir. 2019) 26 Planned Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc. v. Smith 14 27 914 F.3d 994 (5th Cir. 2019) 28 vi DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236 Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 7 of 29
1 TABLE OF AUTHORITIES 2 Cases: 3 Region 8 Forest Serv. Timber Purchasers Council v. Alcock 8 993 F.2d 800 (11th Cir. 1993) 4 Reynolds v. City & Cty. of San Francisco 4
5 No. C 09-0301 RS, 2012 WL 1143830 (N.D. Cal. Mar. 30, 2012) 6 San Francisco Apartment Ass’n v. City & Cty. of San Francisco 10 881 F.3d 1169 (9th Cir. 2018) 7 SCC Acquisitions, Inc. v. Superior Court 8 8 243 Cal. App. 4th 741 (2015)
9 Shulman v. Grp. W Prods., Inc. 14 18 Cal. 4th 200 (1998) 10 Sipple v. Chronicle Publ’g Co. 14 11 154 Cal. App. 3d 1040 (Ct. App. 1984) 12 Sonoma Cty. Employees’ Ret. Assn. v. Superior Court 10 198 Cal. App. 4th 986 (2011) 13 United States v. Ellis 15 14 121 F. Supp. 3d 927 (N.D. Cal. 2015)
15 United States v. Mun. Bond & Collection Servs., Inc. 13 810 F.2d 46 (3d Cir. 1987) 16 Viceroy Gold Corp. v. Aubry 12, 13 17 75 F.3d 482 (9th Cir. 1996) 18 Videckis v. Pepperdine Univ. 10 100 F. Supp. 3d 927 (C.D. Cal. 2015) 19 Vo v. City of Garden Grove 10 20 115 Cal. App. 4th 425 (2004) 21 Wilen v. Falkenstein 16 191 S.W.3d 791 (Tex. App. 2006) 22 Zeliff v. Sabatino 19 23 15 N.J. 70 (1954) 24 Federal Statutes: 25 FED. R. CIV. P. 56(c) 1 26 27 28 vii DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236 Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 8 of 29
1 TABLE OF AUTHORITIES 2 Other Statutes: 3 Cal. Penal Code § 630 15
4 Cal. Penal Code § 632 1, 2, 4, 5, 6, 7, 14, 15, 18
5 Cal. Penal Code § 632(a) 2 6 Cal. Penal Code § 632(c) 2
7 Cal. Penal Code § 633.5 2, 3, 7 Cal. Penal Code § 634 1, 14, 15, 18 8
9 Cal. Penal Code § 637.2 14, 15 10
11 Other Authorities:
7A JOHN W. GRUND, ET AL., COLO. PERSONAL INJURY PRACTICE 16 12 § 29:29 (3D ED. 2018) 13 82 Cal. Ops. Cal. Att’y Gen. 148 (1999) 3 14 HARPER ON TORTS § 226 (1933) 19 15 Illinois’ recording statute. 720 Ill. Comp. Stat. Ann. 5/14–3(i) 3 16 RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 152 11 17 RESTATEMENT (SECOND) OF TORTS § 892B 16 18 RESTATEMENT (SECOND) OF TORTS § 892 (AM. LAW INST. 1979) 16 19 20 21 22 23 24 25 26 27 28 viii DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236 Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 9 of 29
1 NOTICE OF MOTION 2 TO PLAINTIFF AND ITS ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE THAT on Wednesday, July 17, 2019, at 2:00 p.m. in Courtroom
4 2 of the Honorable William H. Orrick III at the United States District Court for the Northern
5 District of California, 17th Floor, 450 Golden Gate Ave., San Francisco, CA 94102, Defendant
6 David Daleiden will, and hereby does move for summary judgment on the ground that there is no
7 genuine issue as to any material fact and that David Daleiden is entitled to judgment as a matter of
8 law for the reason that:
9 □ Plaintiffs’ claims for Violation of the California recording statutes fail because (1) many
10 of the individuals recorded were not speaking on behalf of their employers; (2) many of
11 the individuals recorded had no actual or reasonable expectation that their conversations
12 could not be overheard; (3) Daleiden did not intend to record confidential 13 communications; and (4) due to Cal. Penal Code § 633.5, there was no need to obtain
14 consent of the individuals recorded;
15 □ Plaintiffs’ claim for Invasion of Privacy: California Constitution fails because (1)
16 Plaintiffs lack standing to bring the claim on behalf of their employees; (2) no private 17 content was unearthed; and (3) competing concerns make Daleiden’s actions not
18 actionable; 19 □ Plaintiffs’ claim for Trespass under Cal. Penal Code § 634 fails because (1) Daleiden did 20 not trespass; (2) Daleiden did not intend to violate Cal. Penal Code § 634; and (3) 21 Plaintiffs were not injured; 22 □ Plaintiffs’ claim for common law trespass in Denver and Houston fails because 23 misrepresentation does not vitiate consent; and 24 □ Plaintiffs’ remaining claims fail as stated in co-defendants’ motions for summary judgment. 25 This motion will be based upon the attached points and authorities, the declarations of 26 Jeffrey M. Trissell, Esq. and David Daleiden, the concurrent motions for summary judgment filed 27 by various co-defendants (along with their supporting declarations), all pleadings and records on file 28 in this action, and any argument at the hearing on this matter. ix DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 10 of 29
1 INTRODUCTION
2 Defendant David Daleiden hereby brings this motion for summary judgment. Defendant
3 Daleiden focuses on the claims which concern conduct which he performed, and which are not
4 addressed by other co-defendants’ motions. These include (1) the Ninth Claim for Relief –
5 Violation of Cal. Penal Code § 632; (2) the Fourteenth Claim for Relief – Invasion of Privacy: Cal.
6 Const.; (3) the Tenth Claim for Relief – Violation of Cal. Penal Code § 634; and (4) a portion of the
7 Sixth Claim for Relief – Trespass at offices in Colorado and Texas.
8 The remaining causes of action are addressed by various co-defendants’ motions for
9 summary judgment, and are expressly incorporated herein by reference.
10 LEGAL STANDARD
11 Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
12 and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any
13 material fact and the moving party is entitled to summary judgment as a matter of law.” FED. R.
14 CIV. P. 56(c). “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to
15 make a showing sufficient to establish the existence of an element essential to that party’s case, and
16 on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 17 (1986). As a result, “[w]hile courts are not obligated to do the work of the litigants . . . , district
18 courts may enter summary judgment sua sponte so long as the losing party was on notice that she 19 had to come forward with all of her evidence.” Penley v. McDowell Cty. Bd. of Educ., 876 F.3d 646, 20 661 (4th Cir. 2017).1 Defendant Daleiden hereby places Plaintiffs on notice that he does not believe 21 they have the evidence to establish their claims against him, thereby shifting the burden to them to 22 establish their case. 23 / / / 24 / / / 25 / / / 26 / / / 27 1 Except where noted, emphasis is always added, and citations, quotation marks, brackets, and 28 ellipses are always omitted. 1 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 11 of 29
1 ARGUMENT
2 1. Plaintiffs’ Claim for Violation of Cal. Penal Code § 632 Fails
3 1.1. Legal Background: California Recording Statute
4 Plaintiffs allege that Defendant Daleiden violated Cal. Penal Code § 632 when he
5 “intentionally recorded confidential communications made during” a NAF conference in San
6 Francisco, and made during two restaurant meetings with Plaintiffs’ staff. FAC ¶¶ 212–13. California
7 law provides that a person may not “[1] intentionally and [2] without the consent of all parties to a
8 confidential communication,” [3] use a “recording device to eavesdrop upon or record the
9 confidential communication.” Cal. Penal Code § 632(a). However, [4] California law permits
10 “surreptitious recording if one party consents to being recorded for the purpose of obtaining evidence
11 of certain specified crimes.” In re Trever P., 14 Cal. App. 5th 486, 488 (Ct. App. 2017). The term
12 “confidential communication” “excludes [i] a communication made in a public gathering . . . or [ii] in 13 any other circumstance in which the parties to the communication may reasonably expect that the
14 communication may be overheard or recorded.” Cal. Penal Code § 632(c). Finally, [5] the recording
15 statute does not prohibit subsequent publication of the recorded information, and damages flowing
16 from the publication are not recoverable. Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 17 167 (2003) (limiting actual damages to examples such as emotional distress); see also Franklin v. Ocwen
18 Loan Servicing, LLC, No. 18-CV-03333-SI, 2018 WL 5923450, at *6 (N.D. Cal. Nov. 13, 2018). 19 With respect to [1] above, California uses a strict definition of intentionally, requiring mal- 20 intent (unlike the Federal, Florida, and Maryland recording statutes). It is not the case “that the 21 word ‘intentionally’ as used in subdivision (a) goes only to the act of putting the recording 22 equipment in operation.” People v. Superior Court of Los Angeles Cty., 70 Cal. 2d 123, 132 (1969). 23 “Eavesdropping is not one of that class of crimes that affects public health, welfare or safety,” and 24 therefore “it is not the purpose of the statute to punish a person who intends to make a recording 25 but only a person who intends to make a recording of a confidential communication.” Id. at 132–33. 26 With respect to [4], “California law does not require the consent of both parties to the 27 communication to constitute a lawful interception, but rather requires consent by only one party” 28 under Cal. Penal Code § 633.5. Mclellan v. State, 124 Nev. 263, 267 (2008). That statute requires 2 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 12 of 29
1 [i] the suspicion of the commission by the other party of a felony involving violence against a
2 person; [ii] the actual purpose of the recording being to obtain evidence related to that felony; and
3 [iii] a reasonable belief that the evidence to be obtained would relate to the felony. Cal. Penal Code
4 § 633.5; see also In re Trever P., 14 Cal. App. 5th at 497 n.8 (“[U]nder section 633.5, a single party’s
5 consent makes the eavesdropping lawful provided it is for the purpose of obtaining evidence
6 reasonably believed to relate to the commission by another party of certain offenses”); 82 Cal. Ops.
7 Cal. Att’y Gen. 148 (1999) (“[A] telephone conversation may be recorded in order to obtain
8 evidence reasonably believed to relate to [a violent] crime.”).
9 The recording, however, may “fail[] to capture the anticipated evidence,” and need not be
10 made “to gather evidence for use in a criminal prosecution.” Lubetzky v. State Bar, 54 Cal. 3d 308,
11 321 (1991); see People v. Ayers, 51 Cal. App. 3d 370, 377 (Ct. App. 1975) (recordings “were made
12 pursuant to a plan to . . . pretend[] to participate in the plot and to perpetuate the information for 13 their own purpose”). For example, the statute permits “routinely tape-record[ing] all incoming
14 calls on [] emergency lines.” People v. Suite, 101 Cal. App. 3d 680, 688 (Ct. App. 1980).2
15 A review of other recording statutes reveals only one similar provision that counsel could
16 find, that appearing in Illinois’ recording statute. 720 Ill. Comp. Stat. Ann. 5/14–3(i). Case law 17 interpreting it reveals a similar generous interpretation: “Even so, the exemption does not require
18 proof beyond a reasonable doubt or even the probable cause required for arrest or indictment. 19 Instead, it requires something far less—reasonable suspicion. Thus, that the district attorney did 20 not charge Carroll with any crime—either telephone harassment or something else—does not 21 preclude Pat Kelliher from reasonably believing that Carroll was committing or would commit a 22 crime against Jim Kelliher.” Carroll v. Lynch, 698 F.3d 561, 568 (7th Cir. 2012); see also Dkt. 374-6, 23 Plaintiffs’ Opposition to Defendants’ Motion to Compel, 14:22–15:1 (Dec. 19, 2018) (comparing 24 § 633.5 to probable cause standard for searches).
25 2 See also Joshua Gamez v. Hilton Grand Vacations Inc., No. 2:18-CV-04803 GW (JPRx), 2018 WL 26 8050479, at *3 (C.D. Cal. Oct. 22, 2018) (“§ 633.5 specifically exempts one party to a confidential 27 communication from recording the communication for a variety of evidence-gathering purposes.”); Moore v. Telfon Commc’ns Corp., 589 F.2d 959, 965 (9th Cir. 1978) (“Anderson recorded the 28 conversation for the purpose of obtaining evidence reasonably believed to relate to the crime”). 3 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 13 of 29
1 With respect to [ii], California also differs from the Federal, Florida, and Maryland
2 standard. Here, “a conversation is confidential if a party to that conversation has an objectively
3 reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v.
4 Flanagan, 27 Cal. 4th 766, 768 (2002). It is not relevant whether “the party has an objectively
5 reasonable expectation that the content will not later be divulged to third parties.” Id. In other
6 words, “the statute prohibits monitoring or recording only without the knowledge or consent of all
7 parties to the conversation and only if a party to that conversation has an objectively reasonable
8 expectation that the conversation is not being overheard or recorded.” Hataishi v. First Am. Home
9 Buyers Prot. Corp., 223 Cal. App. 4th 1454, 1465 (2014) (citing Kearney v. Salomon Smith Barney,
10 Inc., 39 Cal. 4th 95, 117 (2006)).3
11 “The standard of confidentiality is an objective one defined in terms of reasonableness.”
12 Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). As such, claims under Cal. 13 Penal Code § 632 are properly dismissed on summary judgment. Reynolds v. City & Cty. of San
14 Francisco, No. C 09-0301 RS, 2012 WL 1143830, at *6 (N.D. Cal. Mar. 30, 2012) (“Under all of these
15 circumstances, no reasonable trier of fact could conclude that Reynolds retained an expectation of
16 privacy in his conversation with the stalking suspect that was reasonable, from either a subjective or 17 objective perspective. Accordingly, summary judgment must enter against him on his claims arising
18 from alleged violation[] of . . . Cal. Penal Code § 632.”), aff’d, 576 F. App’x 698 (9th Cir. 2014).
19 1.2. No Standing & No Actual or Reasonable Expectation Conversations Could Not 20 Be Overheard 21 As an initial note, according to the complaint, the following eight Plaintiffs are bringing a 22 claim for violation of the California recording statute: PPFA, PPNorCal, PPPSW, PPMM, PPOSB, 23 PPGC, PPCFC, and PPRM. FAC 57:8–10. But PPPSW, PPGC, and PPRM have failed to identify 24
25 3 This Court previously indicated that the O’Laskey standard is still sometimes applicable, by stating that “[i]n Flanagan, the California Supreme Court adopted a standard that gave greater protection to 26 privacy interests in private conversations” and as such Defendant Daleiden’s arguments “that 27 plaintiffs’ characterizations of the contents of the recorded conversations as ‘sensitive’ are irrelevant under Flanagan are [] without merit.” Dkt. 124, Order on Motions to Dismiss & Strike, 38 n.32 (Sep. 28 30, 2016). Respectfully, as explained in Hataishi, this is incorrect. 4 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 14 of 29
1 any individuals allegedly recorded in violation of Cal. Penal Code § 632. Ex. 33.4 Therefore,
2 summary judgment should be granted with respect to PPPSW, PPGC, and PPRM’s claims for
3 violation of Cal. Penal Code § 632, leaving only PPFA, PPNorCal, PPMM, PPOSB, and PPCFC.
4 Further, for a corporation to maintain a claim for violation of the California recording
5 statute, it must establish that the defendant “recorded conversations with [its employees] in their
6 capacities as [the corporation’s] employees.” Bona Fide Conglomerate, Inc. v. SourceAmerica, No.
7 3:14-cv-00751-GPC-DHB, 2016 WL 3543699, at *6 (S.D. Cal. June 29, 2016). In addition to not
8 having an actual expectation of confidentiality, many of the recorded individuals were not speaking
9 on behalf of their employers when they were recorded.
10 PPFA’s Claims. Neither Dr. Gatter nor Ms. Felczer (recorded by Defendant Daleiden at a
11 restaurant in Southern California) were employed by any of the above entities. #106–11, 115–20.5
12 Dr. Gatter was the director of the Planned Parenthood Medical Directors’ Council—but she was 13 not a PPFA employee—and she
14 Ex. 36, Gatter Depo., 265:17–266:23; Ex. 37, PPPSGV Depo., 21:9–22:16. Further,
15 during that meeting, their conversation could be overheard by the wait staff. Ex. 36, Gatter Depo.,
16 279:9–19 17 (objection omitted). This is confirmed by Defendant Daleiden. See
18 Daleiden Decl., ¶ 22. 19 / / /
20 4 Exhibits 26–50 are attached to the Declaration of Jeffrey M. Trissell, Esq. Exhibit 53 is attached to 21 the Declaration of Gregory Michael, Esq. 22 5 As noted in the Motion to Strike filed herewith, during fact discovery, Plaintiffs identified 117 purportedly illegal recordings. After the close of fact discovery and completion of relevant 23 depositions, In response to written discovery, Plaintiffs identified a new expanded list of 147 electronic files which purportedly contain illegal recordings. Defense counsel have manually filed an 24 external hard drive containing those files, numbered in the same order as Plaintiffs’ discovery response. Citations to “#” are to the file no. on the external hard drive. While Defendants contend 25 the new 147-item list must be stricken and disregarded, Daleiden addresses all files among the 147 items corresponding to the Plaintiffs asserting this Count, out of an abundance of caution. (A 26 number of the 147 items correspond to Plaintiffs not asserting a § 632 claim and are thus not 27 addressed here.) While Plaintiffs regularly conceded that many the conversations were able to be overheard, each and every conversation was able to be overhead, and Defendants invite the Court 28 to review the relevant recordings to confirm this fact. 5 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 15 of 29
1 This leaves only Dr. Nucatola, #68–69, 76–88, and Doe1023, #35. With respect to Dr.
2 Nucatola, she was recorded on three different occasions: at a restaurant meeting in Southern
3 California and twice at the NAF tradeshow in Northern California.
4
5 Ex. 38, Nucatola Depo., 342:11–349:18.
6 Id. at
7 232:2–233:3
8 242:25–243:15
9 (objection omitted), Ex. 2429 (Police Report: “[D]ue to the area in which she was being recorded at
10 (in a public restaurant) the conversation could be easily overheard by other people.”). This was
11 confirmed by PPFA itself and Defendant Daleiden. Ex. 53, PPFA Depo., 267:10–271:12
12 ; Daleiden Decl., ¶ 21. With respect to Doe1023 (#35), PPFA 13 Ex. 53, PPFA Depo., 263:23–267: 9.
14 PPNorCal’s Claims.
15 . #99–101.
16 17 Ex. 39, PPNorCal Depo., 28:10–13, 28:23–29:1, 43:1–45:11.
18 Id. at 62:7–63:7, 66:1–12, 67:13–69:9 (Doe8001); id. at 80:20– 19 81:3, 82:14–20, 83:18–84:13, 85:14–23 (Doe8002).6 20 PPMM’s Claims. 21 Ex. 40, PPMM Depo., 152:8–153:22. 22 PPOSB’s Claims. 23 Ex. 41, PPOSB Depo., 228:8–9.7 24 PPCFC’s Claims. 25 42, PPGC/CFC Depo., 90:12–92:13.
26 6 With respect to this clip, . Ex. 39, 27 PPNorCal Depo., 73:8–77:15, 280:3–284:8. 28 7 As far as the defense can tell, this is simply an error. 6 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 16 of 29
1 Thus, summary judgment should be readily granted as to all claims except PPFA’s claim for
2 unlawful recording of Nucatola at NAF in San Francisco, #68–69. However, that claim should be
3 stricken as stated in the accompanying Motion to Strike. In any event, for the reasons stated below,
4 it also fails.
5 1.3. No “Intentional” Recording of Confidential Communications.
6 Plaintiffs’ claims for violation of Cal. Penal Code § 632 also fail because Plaintiffs cannot
7 establish that Defendant Daleiden intended to record a conversation of which the other party could
8 reasonably believe it could not be overheard. See People v. Superior Court of Los Angeles Cty., 70 Cal. 2d
9 123, 132 (1969). At the time he made his recordings, Defendant Daleiden was acutely aware of Cal.
10 Penal Code § 632. Indeed, CMP had to present evidence to their donors that their conduct would not
11 be violating it. Daleiden Decl., ¶ 19. As a result, Defendant Daleiden in good faith believed that he
12 would not be recording “confidential communications” and only intended to engage in legal 13 recording. That is why Defendant Daleiden only recorded in California at large tradeshows and in
14 public restaurants—because he believed by doing so he would not be recording “confidential
15 communications.” Id. There is no evidence to the contrary. As stated by the California Supreme
16 Court, “the recording of a confidential conversation is intentional if the person using the recording 17 equipment does so with the purpose or desire of recording a confidential conversation.” Superior
18 Court of Los Angeles Cty., 70 Cal. 2d at 134. Here, the unrefuted evidence shows that was neither 19 Daleiden’s purpose nor desire; therefore Plaintiffs’ claims fail.
20 1.4. No Need for Two-Party Consent 21 As stated above, recording in California with only one-party consent is permissible under 22 Cal. Penal Code § 633.5 if: [i] there is suspicion that the other party is committing felonies involving 23 violence against a person; [ii] the actual purpose of the recording is to obtain evidence related to 24 those felonies; and [iii] the recorder has a subjectively and objectively reasonable belief that the 25 evidence to be obtained could relate to the felony. See In re Trever P., 14 Cal. App. 5th at 497 n.8. 26 Here, with respect to [i] and [ii], Defendant Daleiden has been steadfast in his assertion that 27 the entire purpose of CMP’s investigative journalism project was to uncover evidence of 28 egregiously illegal conduct by Plaintiffs and others profiteering from the transfer of human organs— 7 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 17 of 29
1 including the murder of innocent babies and the battery of women. This is the unrefuted purpose of
2 the project and belief of Daleiden. See Daleiden Decl., ¶¶ 3–6.
3 With respect to [iii], as outlined in the accompanying declaration, Defendant Daleiden was
4 informed and believed (and later confirmed), that certain practices associated with fetal tissue
5 procurement constituted crimes of violence. Daleiden Decl., ¶¶ 23–52. Based on the information
6 they had at the time—including that Drs. Gatter and Nucatola had actually participated in fetal
7 tissue procurement8—this belief was reasonable, and sufficient for them to “routinely” record
8 communications related to their investigation, Suite, 101 Cal. App. 3d at 688, regardless of whether
9 any evidence of criminality was actually uncovered in various conversations, Lubetzky, 54 Cal. 3d at
10 321.
11 2. Plaintiffs’ Claim for Invasion of Privacy: Cal. Const. Fails
12 2.1. Legal Background on Standing 13 “The constitutional [privacy] provision simply does not apply to corporations.” SCC
14 Acquisitions, Inc. v. Superior Court, 243 Cal. App. 4th 741, 755–56 (2015). Therefore, Plaintiffs’
15 complaint is proceeding under an “associational standing” theory. FAC ¶¶ 239, 245; Dkt. 124,
16 Order on Motions to Dismiss & Strike, 43:1–46:10 (Sep. 30, 2016). “[A]n association has standing 17 to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue
18 in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; 19 and (c) neither the claim asserted nor the relief requested requires the participation of individual 20 members in the lawsuit.” Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). 21 But “[a]ssociational standing is reserved for organizations that express the collective views 22 and protect the collective interests of their members.” Fleck & Assocs., Inc. v. Phoenix, City of, an 23 Arizona Mun. Corp., 471 F.3d 1100, 1106 (9th Cir. 2006). It “is properly reserved for voluntary 24 membership organizations—like trade associations or environmental groups—and has no 25 application to a corporation’s standing to assert the interests of its employees.” Region 8 Forest Serv. 26 Timber Purchasers Council v. Alcock, 993 F.2d 800, 810 n. 15 (11th Cir. 1993).
27 8 Ex. 36, Gatter Depo., 55:14–56:1, 61:18–62:16, 75:2–21; Ex. 38, Nucatola Depo., 130:7–11; 144:21– 28 145:19, 235:18–236:6. 8 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 18 of 29
1 In the employer/employee context, the “third-party standing” test is used. That test requires
2 that: “(1) the plaintiff seeking to assert the third party’s rights has otherwise suffered an injury-in-
3 fact, (2) the relationship between the plaintiff and the third party is such that the plaintiff is nearly as
4 effective a proponent of the third party’s right as the third party itself, and (3) there is some obstacle
5 to the third party asserting the right.” Id. at 809.9 When this argument was raised previously,
6 Plaintiffs simply responded that they “could also assert a privacy claim under the third-party standing
7 doctrine,” without significant explanation and despite having failed to plead it. Dkt. 91, Plaintiffs’
8 Opposition to Motion to Dismiss, 41 n.30 (May 25, 2016).
9 2.2. Legal Background on Cal. Const. Art I, § I
10 A privacy claim under the California Constitution requires a plaintiff to establish [1] the
11 existence of a legally protected privacy interest, [2] a reasonable expectation of privacy under the
12 circumstances, and [3] a serious invasion of the plaintiff’s privacy interest. Hill v. NCAA, 7 Cal. 4th 13 1, 35-37 (1994). Further, [4] “[i]f the claimant establishes all three required elements, the strength
14 of that privacy interest is balanced against countervailing interests.” Cnty. of L.A. v. L.A. Cnty.
15 Emp. Relations Comm’n, 56 Cal. 4th 905, 926 (2013).
16 With respect to [1] above, “under California law there are only two classes of legally 17 protected privacy interests under the California Constitution: [i] interests in precluding the
18 dissemination or misuse of sensitive and confidential information (‘informational privacy’); and 19 [ii] interests in making intimate personal decisions or conducting personal activities without 20 observation, intrusion, or interference (‘autonomy privacy’).” In re Yahoo Mail Litig., 7 F. Supp. 3d 21 1016, 1039 (N.D. Cal. 2014). Plaintiffs rely on [i], asserting that “the nature and subject matter of 22 the conferences were highly sensitive,” and there is a legally protected interest “in precluding the 23 dissemination of misuse of sensitive and confidential information.” Dkt. 91, Plaintiffs’ Opposition 24
25 9 See also Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1252 (5th Cir. 1995) (identifying similar test for employer situation); Keepers, Inc. v. City of Milford, 807 F.3d 24, 41 & nn.106–107 (2d Cir. 2015) (same); 26 Novell, Inc. v. Gribben, 168 F.3d 500 (9th Cir. 1999) (citing third-party standing cases, not associational 27 standing cases, for licensee situation); but see Planned Parenthood Arizona, Inc. v. Brnovich, 172 F. Supp. 3d 1075, 1090 (D. Ariz. 2016) (without distinguishing between the two tests, permitting a Planned 28 Parenthood entity to bring case on behalf of its employees using associational standing test). 9 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 19 of 29
1 to Motion to Dismiss, 46:19–22 (May 25, 2016) (quoting FAC ¶ 246; Cnty. of L.A. v. L.A. Cnty.
2 Emp. Relations Comm’n., 56 Cal. 4th 905, 927 (2013)).
3 “Informational privacy” concerns “personal information.” Hill, 7 Cal. 4th at 81–82. “A
4 particular class of information is private when well-established social norms recognize the need to
5 maximize individual control over its dissemination and use to prevent unjustified embarrassment or
6 indignity.” Id. at 35. “The California Constitution sets a ‘high bar’ for establishing an invasion of
7 privacy claim.” In re Yahoo Mail Litig., 7 F. Supp. 3d at 1038. Examples include medical records
8 which would contain “extremely sensitive” information, such as “sexually transmitted disease,
9 possible HIV status, and sexual orientation.” Los Angeles Gay & Lesbian Ctr. v. Superior Court, 194
10 Cal. App. 4th 288, 308 (2011); see also Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927, 933 (C.D.
11 Cal. 2015) (similar); Manela v. Superior Court, 177 Cal. App. 4th 1139, 1150 (2009) (privacy interest
12 in generic medical records outweighed by other interests). “[C]ourts make their decisions regarding 13 whether a plaintiff has stated a legally protectable privacy interest based on the nature of the
14 information at issue.” In re Yahoo Mail Litig., 7 F. Supp. 3d at 1041.
15 With respect to [2], to establish a reasonable expectation of privacy, the forum in which the
16 information is disclosed must be private. See Vo v. City of Garden Grove, 115 Cal. App. 4th 425, 448 17 (2004) (“[A]ctivities on the premises of a public retail establishment [are not confidential]. . . . Nor
18 can it reasonably be understood that the observation of persons using a computer in a CyberCafe 19 involves intrusion either on the making of an intimate personal decision. . . . Plaintiffs do not explain 20 why observation by a video camera intrudes on privacy any more than observation by employees or 21 other patrons.”); see also Gonzales v. Uber Techs., Inc., 305 F. Supp. 3d 1078, 1092 (N.D. Cal. 2018) 22 (“Plaintiff consented to the sharing of his geolocation data with perfect strangers (Lyft riders); thus, 23 under the circumstances he did not have a reasonable expectation of privacy in such information.”). 24 For similar reasons, “information already publicly available is not protected by the right to 25 privacy under the California Constitution.” San Francisco Apartment Ass’n v. City & Cty. of San 26 Francisco, 881 F.3d 1169, 1178 (9th Cir. 2018). Private financial information is protected. See 27 Overstock.com, Inc. v. Goldman Sachs Grp., Inc., 231 Cal. App. 4th 471, 503 (2014). But the salaries 28 and pension benefits of public employees is not protected—because it is public. Int’l Fed’n of Prof’l 10 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 20 of 29
1 & Tech. Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 338 (2007), Sonoma Cty.
2 Employees’ Ret. Assn. v. Superior Court, 198 Cal. App. 4th 986, 1005–06 (2011). More
3 fundamentally, “[a] person’s physical features are not confidential.” Vo, 115 Cal. App. 4th at 448.
4 With respect to [4], “[a]mong the legitimate competing societal interests is the public interest
5 in exposing and prosecuting serious crime.” Baughman v. State of California, 38 Cal. App. 4th 182,
6 190 (1995). Any other serious interest is not infringing on the rights of the free press. Ass’n for Los
7 Angeles Deputy Sheriffs v. Los Angeles Times Commc’ns LLC, 239 Cal. App. 4th 808, 822 (2015).
8 2.3. The Cal. Constitution Claims Fail
9 As stated above, for Plaintiffs’ California Constitution claim, there must be [1] extremely
10 private content; [2] a reasonable expectation of privacy under the circumstances, [3] a serious
11 invasion of the interest in the private content, and [4] these factors must be balanced against other
12 interests, such as prosecuting crime and the newsworthiness of the information. 13 Preliminarily, Plaintiffs cannot assert a claim for violation of the California Constitution
14 with respect to conduct that occurred outside of California. As explained in co-defendant Lopez’s
15 motion for summary judgment, the various defendants’ “tortious” visit to offices in Colorado and
16 Texas, and attendance at conferences in Florida, Maryland, and the District of Columbia must be 17 analyzed under the tort law of those jurisdictions. See Fleury v. Harper & Row, Publishers, Inc., 698
18 F.2d 1022, 1025 (9th Cir. 1983); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 152. 19 As a result of [1] above, there is no meaningful argument Plaintiffs can make that any of their 20 individual staff have a claim for violation of the California Constitution. None of the videos 21 identified by Plaintiffs contain the highly sensitive information required to meet the “high bar” at 22 issue. See Ex. 35, Manually Filed Hard Drive. They are not about sexual relations, medical records, 23 HIV status, or banking information. Indeed, the mere fact that the information was shared as part of 24 business discussions—even business discussions with pro-abortion individuals—means that it is not 25 the type of information which is protected. The California Constitution does not permit of a 26 “relative” privacy like tortious intrusion does, see Lopez’s Motion for Summary Judgment: it only 27 protects highly sensitive information like HIV status. 28 Plaintiffs also cannot establish standing, either under an associational standing theory or a 11 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 21 of 29
1 third-party standing theory. With respect to associational standing—which does not apply in this
2 context anyway—the individual participation of the associational members is required. The
3 “individual participation” factor is not met if an “individual inquiry” is required which would lead
4 to “needing to consult with individual members.” FOAGLA, Inc. v. 7-Eleven, Inc., No. EDCV 14-
5 1432 JGB (SPx), 2014 WL 12601505, at *4 (C.D. Cal. Dec. 18, 2014) (collecting cases); NorCal Tea
6 Party Patriots v. I.R.S., No. 1:13-CV-341, 2014 WL 3547369, at *4 (S.D. Ohio July 17, 2014) (no
7 associational standing in privacy case). Associational standing might work in the situation where the
8 privacy jurisprudence protects generic privacy interests: such as the general right to exclude
9 regardless of the content of the information (similar to Fourth Amendment jurisprudence); or where
10 the content is per se private such as medical records. See Nat’l Ass’n of Letter Carriers, AFL-CIO v.
11 U.S. Postal Serv., 604 F. Supp. 2d 665, 676 (S.D.N.Y. 2009) (issue whether seizure of medical
12 records violate privacy under Fourth Amendment standard). As a result, Plaintiffs pleaded that 13 they had a “reasonable expectation that the conversations and interactions” at various conferences
14 and in various business meetings “would be private”—system wide. FAC ¶¶ 246–47.
15 But that is not how the privacy provision in the California Constitution works. “It is well
16 settled that the right of privacy [under the California Constitution] is purely a personal one; it 17 cannot be asserted by anyone other than the person whose privacy has been invaded, that is,
18 plaintiff must plead and prove that his privacy has been invaded.” Ass’n for L.A. Deputy Sheriffs v. 19 L.A. Times Commc’ns, LLC, 239 Cal. App. 4th 808, 821 (2015) (applying Cal. Const. in 20 associational standing context) (original italics). Parties cannot merely state that everybody expects 21 their emails to be private, and so an email provider should not be copying them all. In re Yahoo Mail 22 Litig., 7 F. Supp. 3d at 1040 (“To the extent Plaintiffs claim a legally protected privacy interest and 23 reasonable expectation of privacy in email generally based on the mere fact that Yahoo intercepted 24 and distributed their emails, regardless of the specific content in the emails, Plaintiffs’ claim fails as 25 a matter of law.”) (original italics). For the same reason, Plaintiffs cannot merely state that 26 everybody in the abortion industry expects conversations with other individuals in that same 27 industry to be treated as private (due to the potential for public shaming), and so they should never 28 be recorded. This theory “fails as a matter of law” and therefore cannot serve as a basis for 12 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 22 of 29
1 associational standing. See id.
2 With respect to third-party standing—which does apply but which is not pleaded—Plaintiffs
3 have no standing because there is no obstacle or hindrance to the staff members themselves
4 bringing suit. Employees are perfectly adequately equipped to protect their own interests. Viceroy
5 Gold Corp. v. Aubry, 75 F.3d 482, 489 (9th Cir. 1996) (finding no hindrance); Int’l Union v. Dana
6 Corp., 278 F.3d 548, 560 n.13 (6th Cir. 2002) (same); United States v. Mun. Bond & Collection Servs.,
7 Inc., 810 F.2d 46, 49 (3d Cir. 1987) (same).
8 Further, the hindrances at issue must be very severe, such as where there is simply no third
9 party around to assert his own interests. See Lake v. Reno, 226 F.3d 141, 147 (2d Cir. 2000), vacated
10 on other grounds 533 U.S. 913 (2001) (third party passed away and so “was irrevocably and finally
11 hindered from vindicating his own rights”); Illinois Citizens Comm. for Broad. v. F.C.C., 515 F.2d
12 397, 402 (D.C. Cir. 1974) (radio station could assert the public’s constitutional right to receive 13 information). Simple difficulty in asserting the rights is not a sufficient hindrance. McCollum v.
14 California Dep’t of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011) (prisoners had ability to
15 challenge program); Kyung Park v. Holder, 572 F.3d 619, 625 (9th Cir. 2009) (foreign domicile not
16 obstacle to asserting rights). And the mere fact that the party who would assert the right might be 17 disfavored, or advancing an unpopular view, is not a sufficient hindrance. See MD II Entm’t, Inc. v.
18 City of Dallas, Tex., 28 F.3d 492, 497 (5th Cir. 1994) (no genuine obstacle to nude dancers bringing 19 suit themselves); Ferris v. Santa Clara Cty., 891 F.2d 715, 717 n.3 (9th Cir. 1989) (no standing to 20 assert rights of minors to engage in criminalized sexual activity).10 21 Finally, factor [4] above—regarding how the newsworthiness of the information tempers the 22 offensiveness of the conduct—also defeats the claim. Throughout this litigation, Plaintiffs have 23 repeatedly seized on the Court’s statement in the related case that “[t]he products of [the Human 24 Capital] Project—achieved in large part from the infiltration—thus far have not been pieces of 25 journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect 26
10 27 Further, any individuals concerned about confidentiality could have proceeded using Doe identifiers, as the plaintiffs did in John and Jane Does 1-10 v. University of Washington and David 28 Daleiden, W.D. Wash., Case No. 2:16-cv-01212. 13 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 23 of 29
1 to the NAF materials) of criminal misconduct.” Nat’l Abortion Fed’n v. Ctr. for Med. Progress, No.
2 15-CV-03522-WHO, 2016 WL 454082, at *24 (N.D. Cal. Feb. 5, 2016).
3 But the defense can point to similarly impressive judicial rulings: “[B]ased on the videos, []
4 the Provider Plaintiffs at a minimum violated federal standards regarding fetal tissue research and
5 standards of medical ethics by allowing doctors to alter abortion procedures to retrieve tissue for
6 research purposes or allowing the researchers themselves to perform the procedures.” Planned
7 Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc v. Smith, 913 F.3d 551,
11 8 568 (5th Cir. 2019); see also id. at 559 n. 6 (dismissing PPGC’s “misleading” allegation because
9 “the record reflects that OIG had submitted a report from a forensic firm concluding that the video
10 was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission
11 or addition in the video footage.”).
12 Proceeding in this manner, however, would simply be unconstitutional. Newsworthiness is 13 not “governed by the tastes or limited interests of an individual judge or juror; a publication is
14 newsworthy if some reasonable members of the community could entertain a legitimate interest in
15 it.” Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 225 (1998). In other words, so long as
16 reasonable people are actually interested (as opposed to the alleged public interest being a mere 17 excuse to defame someone), “the trial court was . . . mandated[] in granting summary judgment.”
18 Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040, 1050 (Ct. App. 1984). 19 Here, the simple fact is that Defendant Daleiden’s investigation into, and publication of 20 information about, undisputed12 criminal wrongdoing by the nation’s largest abortion provider is per 21 se newsworthy. It is irrelevant that some segments of the population may have found Defendant 22 Daleiden’s investigation distasteful; or that some may find the highlight footage sensational. What 23 matters is that the public took an immediate and impressive interest in the story. Therefore, 24 Plaintiffs’ Cal. Const. invasion of privacy claim fails. See Daleiden Decl., ¶¶ 57–98. 25 26
11 27 Reh’g en banc granted sub nom. Planned Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc. v. Smith, 914 F.3d 994 (5th Cir. 2019). 28 12 See Defendant Lopez’s Note on the Argument. 14 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 24 of 29
1 3. Plaintiffs’ Claim for Trespass at the 2014 NAF Conference Fails
2 The California Penal Code provides that it is illegal for “[a]ny person [to] trespass[] on
3 property for the purpose of committing any act, or attempting to commit any act, in violation of
4 Section [] 632.” Cal. Penal Code § 634. “Any person who has been injured by a violation of this
5 chapter may bring an action against the person who committed the violation for . . . (1) Five thousand
6 dollars ($5,000). (2) Three times the amount of actual damages, if any, sustained by the plaintiff.”
7 Cal. Penal Code § 637.2 (2014). Plaintiffs have asserted that, although they did not have any interest
8 in the property upon which Defendant Daleiden allegedly trespassed, they nevertheless have standing
9 because another party may have had standing to exclude, and Plaintiffs were injured by the alleged
10 trespass against that other party. Dkt. 91, Plaintiffs’ Opposition to Motion to Dismiss, 34:14–35:1
11 (May. 25, 2016). Plaintiffs’ claim is illogical for several reasons.
12 First, to establish a “possessory interest” required for trespass, parties “must show that [the 13 trespassees] have the right to exclude others.” United States v. Ellis, 121 F. Supp. 3d 927, 945 (N.D.
14 Cal. 2015). But Plaintiffs have no knowledge whether NAF had that right: they simply assume as
15 much. Ex. 53, PPFA Depo., 159:15–160:9. Second, as stated above, Defendant Daleiden neither
16 violated Cal. Penal Code § 632, nor intended to, and therefore there is no violation of Cal. Penal Code 17 § 634. See § 1, supra. Third, Plaintiffs were not injured by the alleged trespass. The only harm flowing
18 from the alleged trespass would be at most to the possessor of the property, such as the hotel itself. 19 Any subsequent harm which Plaintiffs could have sustained would not have been proximately caused 20 by the trespass. See Food Lion I, 964 F. Supp. at 963, aff’d, Food Lion II, 194 F.3d 505, Animal Legal 21 Def. Fund v. Wasden, 878 F.3d 1184, 1195 n.9 (9th Cir. 2018). Thus, Plaintiffs were not harmed by any 22 purported trespass, and have no standing to bring a claim for violation of Cal. Penal Code § 634. 23 Fourth, Plaintiffs’ claim is redundant. Although Plaintiffs’ complaint alleges claims for 24 violation of § 632 and § 634 separately, this is error. Plaintiffs’ real claim is pursuant to § 637.2. 25 That section permits a single claim for violation of Cal. Penal Code § 630, et seq., and permits either 26 a single award of $5,000 or actual damages. Franklin, 2018 WL 5923450, at *7. But publication 27 damages are unavailable to Plaintiffs under either § 632 and § 634, see Wasden, 878 F.3d at 1195 n.9; 28 Lieberman, 110 Cal. App. 4th at 167, and so each Plaintiff is limited to a single award of $5,000. In 15 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 25 of 29
1 that situation, where Plaintiffs would have to prove a violation of § 632 to prove a violation of § 634,
2 and both violations lead to a single result, the latter is redundant. Summary judgment should be
3 granted.
4 4. Plaintiffs’ Claim for Common Law Trespass Fails
5 For the reasons stated in co-defendant Lopez’s motion for summary judgment, Plaintiffs’
6 claims for trespass at their various conferences in Florida and the District of Columbia fail because
7 they did not have a possessory interest in the space assigned to them by various hotels. However, in
8 addition, all of Plaintiffs’ common law trespass claims fail because Plaintiffs consented to the
9 various defendants’ entry.
10 “Trespass to real property occurs when a person enters another’s land without consent.”
11 Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex. App. 2006); see Gifford v. City of Colorado Springs,
12 815 P.2d 1008, 1012 (Colo. App. 1991) (“Trespass is an entry upon the real property of another 13 without the invitation or permission”).
14 Thus, conversely, a consented entry, such as Defendant Daleiden’s, “will not support an
15 action in trespass.” Hawthorne v. Fisher, 33 F. Supp. 891, 896 (N.D. Tex. 1940). “[T]o maintain an
16 action for trespass, it is the plaintiff’s burden to prove that the entry was wrongful, and the plaintiff 17 must do so by establishing that entry was unauthorized or without its consent.” Envtl. Processing
18 Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 425 (Tex. 2015); see 7A JOHN W. GRUND, ET AL.,
19 COLO. PERSONAL INJURY PRACTICE § 29:29 (3D ED. 2018) (“In a trespass action, it is typically 20 considered part of a plaintiff’s prima facie case to show that the intrusion onto the plaintiff’s 21 property was without his permission.”). 22 “Consent is willingness in fact for conduct to occur.” Conlay v. Baylor Coll. of Med., 688 F.
23 Supp. 2d 586, 592 n.20 (S.D. Tex. 2010) (quoting RESTATEMENT (SECOND) OF TORTS § 892 (AM.
24 LAW INST. 1979)); see also Dominguez v. Babcock, 727 P.2d 362, 364 (Colo. 1986) (same). But “[i]f the 25 person consenting to the conduct of another is induced to consent by a substantial mistake concerning 26 the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake 27 is known to the other or is induced by the other’s misrepresentation, the consent is not effective for 28 the unexpected invasion or harm.” Landry’s, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 64 (Tex. 16 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 26 of 29
1 App. 2018) (quoting RESTATEMENT (SECOND) OF TORTS § 892B).
2 “The rule . . . is limited to substantial mistakes, known to the actor, concerning the nature
3 of the invasion or the extent of the harm that is to be expected. If the consent is induced by mistake
4 concerning other matters, the rule does not apply.” RESTATEMENT (SECOND) OF TORTS § 892B, cmt. g.
5 This distinction between a “substantial mistake” regarding “the nature of the invasion of his
6 interests” is described “sometimes by saying that the mistake goes merely to the ‘inducement’ of
7 the consent, rather than to the essence of what is consented to; sometimes by saying that it goes
8 merely to a ‘collateral’ matter.” Id.
9 Plaintiffs here pleaded that “Defendants fraudulently obtained PPGC, PPCFC, and
10 PPRM’s conditional consent to enter their facilities by misrepresenting their identities and purpose.
11 PPGC and PPCFC conditioned their consent on Defendants’ promise to keep all information
12 confidential. PPGC and PPRM both conditioned their consent on Defendants’ false representations 13 that they were representatives of a fetal tissue procurement company and that they sought entry to
14 discuss fetal tissue donation.” FAC ¶ 193.
15 With respect to the former “condition,” the PPGC non-disclosure agreement, PPGC’s
16 remedy is for breach of contract—not trespass. “[A] person who obtained possession to land 17 through a fraudulent contract cannot be prosecuted for trespass.” Lilly Indus., Inc. v. Health-Chem
18 Corp., 974 F. Supp. 702, 709 (S.D. Ind. 1997) (citing Howe v. State, 10 Ind. 492, 492–93 (1858)). 19 With respect to both “conditions,”13 the issue is whether the fact that Defendant Daleiden 20 was a journalist was a “substantial mistake” which would vitiate consent, or whether it was simply 21 a “collateral” matter. It was the latter. 22 23 13 Plaintiffs cannot merely state that had they known Defendant Daleiden was a journalist, they 24 would not have permitted him to enter, and in that sense the concealment was material. Rather, Plaintiffs must establish that the license which they gave Defendant Daleiden to enter restricted 25 him to only engaging in specific conduct. “[A]n action for trespass . . . will not lie unless plaintiff’s possession was intruded upon by defendant without his consent, even though consent may have 26 been . . . procured by fraud, or unless he entered under a license for some particular purpose and went beyond that purpose.” Martin v. Fid. & Cas. Co. of New York, 421 So. 2d 109, 111 (Ala. 1982) 27 (quoting Alexander v. Letson, 242 Ala. 488, 492 (1942)). There is no evidence of record that Daleiden entered under a license for a particular purpose, much less that he exceeded such license. 28 17 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 27 of 29
1 In Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the Ninth Circuit struck
2 down a statute which criminalized “entry into an agricultural production facility by . . . trespass.” Id.
3 at 1194. In so doing, the Ninth Circuit analyzed whether the statute criminalized conduct protected by
4 the First Amendment. The Ninth Circuit then struck it down because it would cover “investigative
5 journalists” and “lying to gain entry merely allows the speaker to cross the threshold of another’s
6 property, including property that is generally open to the public.” Id. at 1195.14 That, in itself, does
7 not cause legally relevant harm. See id. at 1195 n.9 (“At issue here is the speech to gain entry to the
8 facility, not the journalistic creation or speculative harm that may arise after entry.”).
9 Similarly here, misrepresentations by the Defendant investigative journalists to gain entry
10 merely allowed them to cross the threshold of Plaintiffs’ property. Wasden, 878 F.3d at 1194-95. See
11 also Desnick v. Am. Broad. Companies, Inc., 44 F.3d 1345, 1352 (7th Cir. 1995) (“The answer can have
12 nothing to do with fraud; there is fraud in all the cases. It has to do with the interest that the torts in 13 question, battery and trespass, protect.”); Am. Transmission, Inc. v. Channel 7 of Detroit, Inc., 239
14 Mich. App. 695, 708–09 (2000) (“[T]he trial court properly granted summary disposition of
15 plaintiffs’ trespass claim. Although Stern misrepresented her purpose, plaintiffs’ consent was still
16 valid because she did not invade any of the specific interests relating to the peaceable possession of 17 land that the tort of trespass seeks to protect.”).
18 Plaintiffs cannot meet their burden to establish lack of consent; the Court should grant 19 summary judgment. 20 21 22 23 14 Places “open to the public” are those to which a person is invited to enter even after engaging in 24 misrepresentation. See, e.g., Pitts Sales, Inc. v. King World Prods., Inc., No. 04-60664-CIV-COHN, 2005 WL 4038673, at *4 (Bankr. S.D. Fla. July 29, 2005) (The defendant “did not gain access to 25 special areas of Plaintiff’s property that others could not have accessed simply by telling Plaintiff that they were interested in selling magazines for Pitts Sales or any other companies traveling with Pitts 26 Sales.”); Northside Realty Assocs., Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir. 1979) (“The testers did no more than what any member of the home-buying public is invited, and indeed 27 welcomed, to do. . . . The testers did not enter into any restricted areas of the office, such as an employees’ lounge.”). 28 18 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 28 of 29
1 5. Plaintiffs’ Claims for Fraud and Conspiracy to Defraud Fail
2 As the Ninth Circuit has boldly announced, “a false statement [by an investigator] made in
3 order to access a[] . . . facility—cannot on its face be characterized as made to effect a fraud.”
4 Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1194 (9th Cir. 2018). This is because
5 “[m]isrepresentation, even maliciously committed, does not support a cause of action unless the
6 plaintiff suffered consequential damages.” Orcilla v. Big Sur, Inc., 244 Cal. App. 4th 982, 1008
7 (2016). “[W]ithout actual damages, there is no fraud.” Kurinij v. Hanna & Morton, 55 Cal. App. 4th
8 853, 866 (1997). There is a First Amendment right to lie, and therefore, “[u]nless the plaintiff can
9 show an actual pecuniary loss, he can recover nothing. Fraud without actual damage is not
10 actionable.” Zeliff v. Sabatino, 15 N.J. 70, 77 (1954) (quoting HARPER ON TORTS § 226 (1933)).
11 As stated in Defendant CMP’s motion for summary judgment, the only harm which
12 Plaintiffs suffered was the harm of having their criminal conduct unearthed and publicized. 13 Plaintiffs’ desire to run amok over the First Amendment, or pretend it does not apply to them, must
14 fail. Cf. Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 520 (Ct. App. 1986) (“This type
15 of activity, at least, is within the news gathering activities which are protected by the First
16 Amendment.”). Defendants do not concede either materiality or reliance—and do not believe 17 Plaintiffs can establish those elements in the face of the First Amendment—but those elements
18 need not be discussed now because Plaintiffs’ claims fail for lack of damages. 19 CONCLUSION 20 For the foregoing reasons, this Court should grant the present motion for summary 21 judgment, entering judgment in favor of Defendants’ on Plaintiffs’ claims for Violation of Cal. Penal 22 Code § 632, Invasion of Privacy: Cal. Const., Violation of Cal. Penal Code § 634, common-law 23 trespass in Colorado and Texas. 24 25 26 27 28 19 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236
Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 Page 29 of 29
1
Respectfully submitted, 2
May 22, 2019, 3
4 /s/ Charles S. LiMandri /s/ Thomas Brejcha Charles S. LiMandri (CA Bar No. 110841) Thomas Brejcha, pro hac vice
5 Paul M. Jonna (CA Bar No. 265389) Peter Breen, pro hac vice Jeffrey M. Trissell (CA Bar No. 292480) THOMAS MORE SOCIETY 6 B. Dean Wilson (CA Bar No. 305844) 309 W. Washington St., Ste. 1250 FREEDOM OF CONSCIENCE DEFENSE FUND Chicago, IL 60606 7 P.O. Box 9520 Tel: (312) 782-1680 Rancho Santa Fe, CA 92067 Facsimile: (312) 782-1887 8 Tel: (858) 759-9948 [email protected] Facsimile: (858) 759-9938 [email protected] 9 [email protected] [email protected] 10 Matthew F. Heffron, pro hac vice [email protected] THOMAS MORE SOCIETY 11 10506 Burt Circle, Suite 110 Denise M. Harle (CA Bar No. 275561) 501 Scoular Building ALLIANCE DEFENDING FREEDOM Omaha, NE 68114 12 1000 Hurricane Shoals Rd., NE Tel: (312) 782-1680 13 Suite D1100 [email protected] Lawrenceville, GA 30043 14 Tel: (770) 339-0774 Attorneys for Defendant David Daleiden [email protected] 15 Harmeet K. Dhillon (CA Bar No. 207873) 16 Gregory R. Michael (CA Bar No. 306814) 17 DHILLON LAW GROUP INC. Attestation Pursuant to Civ. L.R. 5.1(i)(3) 177 Post Street, Suite 700 18 San Francisco, CA 94108 As the filer of this document, I attest 415-433-1700 that concurrence in the filing was obtained 19 415-520-6593 (fax) from the other signatories. [email protected] 20 /s/ Charles S. LiMandri Attorneys for Defendant David Daleiden Charles S. LiMandri 21 Counsel for Defendant Daleiden
22
23
24 25 26 27 28 20 DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236