StemExpress filing 8-21-15 for preliminary injunction

PLAINTIFFS’ REPLY IN SUPPORT OF A PRELIMINARY INJUNCTION

McDERMOTT WILL & EMERY LLPCHARLES E. WEIR (State Bar No. 211091)[email protected] JONES (State Bar No. 229858)[email protected] M. HAMMOND (State Bar No. 293433)[email protected] Century Park East, Suite 3800Los Angeles, CA 90067Telephone: 310.277.4110Facsimile: 310.277.4730

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – CENTRAL DISTRICT

STEMEXPRESS, LLC et al.,

Plaintiffs,

v.

THE CENTER FOR MEDICAL PROGRESS, BIOMAX PROCUREMENT SERVICES, LLC, DAVID DALEIDEN (aka “ROBERT SARKIS”), DOE 1 (aka “SUSAN TENNENBAUM”), and DOES 2 through 100, inclusive,

Defendants.

CASE NO. BC589145


[SUPPLEMENTAL COMPENDIUM OF EVIDENCE AND APPENDIX OF NON-CALIFORNIA AUTHORITIES FILED CONCURRENTLY HEREWITH; PROPOSED PRELIMINARY INJUNCTION LODGED CONCURRENTLY HEREWITH]

Hearing

Date: August 21, 2015Time: 9:30 a.m.Dept: 86Judge: Hon. Joanne O’Donnell


I. INTRODUCTION

In opposing Plaintiffs’ request to conduct discovery under the anti-SLAPP statute,

Defendants argued that the preliminary injunction is an unconstitutional prior restraint of speech

and not authorized under the Invasion of Privacy Act. Plaintiffs did not have the chance to

address those arguments or demonstrate, as they do now, that Defendants misled the Court

concerning the applicable law and scope of Plaintiffs’ requested injunction. Plaintiffs seek a

narrow injunction prohibiting Defendants from only disseminating the fruits of their unlawful

conduct – the secret video recordings of the May 22 meeting in violation of the Act. Plaintiffs do

not seek to enjoin Defendants from disclosing what was said during the meeting. This distinction

is critical both for purposes of the relief available under the Act and the constitutional

consequences of the limited injunction sought here.

First, the entire purpose of the Act is to protect “an important aspect of privacy of

communication – the right to control the nature and extent of the firsthand dissemination of his

statements.” Ribas v. Clark, 38 Cal. 3d 355, 361 (1985) (emphasis added). Conversely, the Act

does not prohibit the disclosure of information conveyed in a private conversation. This is the

exact distinction that the court applied in Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th

156 (2003). There, the court held that while plaintiffs may not obtain damages for the disclosure

of information divulged in an illegally-recorded conversation, they may “recover the recording.”

The ability to recover the recording and control the manner of its dissemination goes directly to

the basic purpose of the Act. Here, Plaintiffs do not ask the Court to order the return of the illegal

recording, but merely ask the Court to block its further dissemination. Because Plaintiffs do not

seek an order barring Defendants from disclosing any underlying information from the May 22

meeting, Defendants’ quotation of Lieberman regarding “the disclosure of information” is

inapposite. The relevant portion of Lieberman is the holding that the Act allows courts to order

illegal recordings to be returned. Even if the Court concludes that this relief is not expressly

authorized by the Act, it can still enter the injunction under its broad equitable powers.

Second, the requested preliminary injunction is not an invalid prior restraint. Under

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binding Supreme Court precedent, a content-neutral injunction directed at unlawful conduct that

burdens no more speech than necessary and serves a significant government interest is not an

unconstitutional prior restraint. See Madsen v. Women’s Health Ctr., 512 U.S. 753, 776 (1994);

DVD Copy Control Assn., Inc. v. Bunner, 31 Cal. 4th 864, 885-889 (2003). Defendants

completely disregard the relevant constitutional analysis. Instead, they rely on authority that is

either inapposite (e.g., cases involving content-based injunctions for defamatory speech) or

reflects a basic misunderstanding of constitutional law. Contrary to Defendants’ assertion, there

is no constitutional protection for disseminating unlawfully-obtained material. An injunction

prohibiting the distribution of Defendants’ illegal recording is constitutional.

Beyond these threshold issues, Plaintiffs’ evidence clearly demonstrates that they can

prevail on the merits of their claim under the Act and that the irreparable harm they face from the

release of the video clearly outweighs any harm to Defendants. Therefore, the Court should issue

a preliminary injunction prohibiting Defendants from disseminating the illegal video recordings.

II. COURTS CAN ENJOIN THE PUBLICATION OF AN ILLEGAL RECORDING

Defendants argue that there is no the authority to issue the injunction based on a single

sentence contained in Lieberman. This argument is completely wrong, as it disregards the actual

holding in Lieberman, misconstrues the Act, and ignores the Court’s broad equitable powers.

The Invasion of Privacy Act criminalizes the recording of a “confidential communication”

without the consent of all parties to the communication. Pen. Code § 632(a). The fundamental

purpose of the Act is to protect “an important aspect of privacy of communication – the right to

control the nature and extent of the firsthand dissemination of his statements.” Ribas, 38 Cal.

3d at 361 (emphasis added). The “evil” that the Act prevents is the “simultaneous dissemination”

of a confidential communication “to an unannounced second auditor, whether that auditor be a

person or a mechanical device.” Id. at 360-361. Thus, while the Act prohibits such “firsthand

repetition,” it does not forbid “secondhand repetition,” i.e., retelling what someone said during a

conversation. Id. Thus, the Act is not concerned with what someone says (the content or

information revealed during a conversation), but how and to whom they say it (the manner). The


Supreme Court has observed that this is “a substantial distinction.” Id.

It is this critical distinction between “the information” divulged on the illegally-recorded

conversation and “the recording” itself that Defendants ignore. Lieberman recognizes this

distinction in holding that a victim has the right to recover the recording under the Act. 110 Cal.

App. 4th at 167 (holding that victim of illegal recording can recover the recording and any legal

expenses incurred in doing so). Plaintiffs seek an even lesser remedy at this time – a preliminary

injunction barring any further dissemination of the illegal recording itself (not the information

disclosed on the recording). Defendants’ effort to mischaracterize the scope of the injunction to

cover “information” disclosed at the meeting and/or to confuse the distinction between the illegal

recording itself and the information disclosed at the May 22 meeting must be rejected.

The fact that the Court can issue the requested injunction is further supported by the Act

itself and its legislative history. The Act specifically authorizes injunctive relief and precludes

the admissibility of the recording in court. Pen. Code §§ 637.2(b), 632(d); Jones Decl. ¶ _, Ex. _

(noting that “[a] party subject to such eavesdropping should not be forced to forego seeking

redress for his grievances by the fear that in so doing he will be forced to disclose at a public

hearing the very communication he is attempting, or was attempting, to keep confidential.”).

Defendants’ argument that the injunctive relief provision only applies to future

eavesdropping is nonsensical and contradicts the holding in Lieberman. First, authorizing an

injunction only to prevent a future illegal recording would be meaningless. The mere knowledge

of the listener’s intent to eavesdrop would eliminate any possible violation of the Act. Pen. Code

§ 632(c). If Defendants’ were right, a party could never get an injunction. Second, Lieberman

specifically recognizes that a court can order the return of the illegal recording. This allows the

victim to control the distribution and effectuates the specific purpose of the Act. Third, “while an

injunction may not go against statutory law, it may go beyond statutory law.” People v. Custom

Craft Carpets, 159 Cal. App. 3d 676, 684 (1984) (“Equity does not wait on precedent which

exactly squares with the facts in controversy, but will adjust itself to those situations where right

and justice would be defeated but for its intervention.”) (citations omitted). Thus, the Court has


also the equitable power to enjoin Defendants’ from disseminating the illegal recording.

The only way this injunction would not be available here is if the Act contained a

provision expressly barring it. There is nothing in the Act, the legislative history, or the case law

that would support such an absurd construction. To conclude otherwise would mean that the

Legislature enacted a statute designed to protect people from losing “the right to control the

nature and extent of the firsthand dissemination of his statements” (Ribas, 38 Cal. 3d at 361) and

at the same time, intentionally blocked courts from issuing injunctive relief to effectuate that

exact purpose. Indeed, Lieberman establishes that the opposite is true.1

III. THE PRELIMINARY INJUNCTION IS NOT AN INVALID PRIOR RESTRAINT

A. The Requested Injunction Is Content Neutral, Aimed At Unlawful Conduct, Serves A Significant Government Interest, And Is Narrowly Tailored

Defendants’ argument that prior restraints are pre se prohibited regardless of the illegality

the information gathering techniques is wrong. Prior restraints on speech are subject to

constitutional scrutiny. However, the U.S. Supreme Court and the California Supreme Court

have regularly upheld speech-restricting injunctions under the prior restraint doctrine. See, e.g.,

Madsen v. Women’s Health Ctr., 512 U.S. 753, 776 (1994) (upholding injunction barring anti-

abortion protesters from demonstrating in certain places and ways outside of abortion clinics);

Schenck v. Pro-Choice Network, 519 U.S. 357, 385 (1997) (same); Planned Parenthood Shasta-

Diablo v. Williams, 10 Cal. 4th 1009, 1024 (1995) (same); Bunner, 31 Cal. 4th at 889-890

(upholding injunction barring dissemination of trade secret software code). Ignoring Defendants’

false tautologies and applying the correct constitutional analysis, it is clear that the requested

injunction is not an invalid prior restraint.

The prior restraint doctrine does not bar “content-neutral injunctions directed at prior

unlawful conduct.” Bunner, 31 Cal. 4th at 885-889 (citing Madsen, 512 U.S. 753). Such an

injunction is one that “that serves purposes unrelated to the content of expression is deemed

neutral, even if it has an incidental effect on some speakers or messages but not others.” Id. at

877. In contrast, injunctions “that by their terms distinguish favored speech from disfavored

1 Defendants’ argument also ignores Plaintiffs’ other claims. Plaintiffs assert claims for conversion and unfair competition. Both claims also support the relief sought by the injunction.


speech on the basis of the ideas or views expressed are content based.” Id.

Plaintiffs’ requested preliminary injunction is content neutral as it is not directed at the

information disclosed, but the unlawful recording itself. The Invasion of Privacy Act prohibits

people from secretly recording confidential communications regardless of the specific content of

the communication. Pen. Code § 632(a); Ribas, 38 Cal. 3d at 360-361. As discussed above, this

is precisely what Plaintiffs request here – an injunction prohibiting Defendants from

disseminating the illegal recording (unlawful conduct), not from repeating what the parties said

during the May 22 meeting (content neutral). In this way, Plaintiffs’ requested injunction is no

different than the injunctions upheld in Madsen, Schenck, and Williams, where anti-abortion

protesters were constitutionally enjoined not in what they wanted to say, but how, where, and

when they wanted to say it. Such injunctions are simply not subject to strict constitutional

scrutiny. Because Plaintiffs’ requested injunction is content-neutral and aimed at Defendants’

unlawful conduct, it is not barred by the prior restraint doctrine. See Bartnicki v. Vopper, 532

U.S. 514, 526 (2001) (holding that federal anti-wiretapping law prohibiting illegally-recorded

communications is “a content-neutral law of general applicability”).

Plaintiffs’ requested preliminary injunction also serves a significant government interest

and is narrowly tailored. A content-neutral injunction must “burden no more speech than

necessary to serve a significant government interest.” Bunner, 31 Cal. 4th at 880 (quoting

Madsen, 512 U.S. at p. 765). An injunction under the Act clearly serves two significant

government interests. First, it protects “an important aspect of privacy of communication – the

right to control the nature and extent of the firsthand dissemination of his statements.” Ribas, 38

Cal. 3d at 361. Second, it removes an incentive for parties to secretly record private

conversations. See Bartnicki, 532 U.S. at 529. Plaintiffs’ requested injunction burdens no more

speech than necessary to serve these purposes. Again, Plaintiffs only seek to enjoin the

dissemination of the illegal recording, not Defendants’ ability to publish what was said during the

May 22 meeting. This critical distinction is dispositive of any prior restraint concern.


B. Defendants’ Prior Restraint Argument And Analysis Are Misguided

Defendants argue that the injunction would constitute an unconstitutional prior restraint.

Opp. pp. 2-3. However, Defendants glaringly fail to cite, apply, or argue the correct legal

standard of the prior restraint doctrine discussed above. See, e.g., Madsen, 512 U.S. at 776;

Bunner, 31 Cal. 4th at 889-890.

Each of the cases cited by Defendants are either inapposite or reflect a basic

misunderstanding of constitutional law. First, cases addressing the constitutionality of an

injunction prohibiting defamatory speech are inapposite because they involve content-based

restrictions and therefore are subject to a different level of scrutiny. See Balboa Island Village

Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1147-1162 (2007) (assessing permanent injunction for

defamatory statements); see also Wilson v. Superior Court, 13 Cal. 3d 652, 658 (1975) (same).

Second, Defendants assertion that a preliminary injunction is improper “even if the

content of the speech was improperly obtained” is legally wrong. Opp. p. 2. The U.S. Supreme

Court has never held that a defendant who illegally acquires information is constitutionally

privileged to publish it. Bartnicki, 532 U.S. at 528 (stating that “New York Times v. United States

[403 U.S. 713 (1971)] raised, but did not resolve the question whether, in cases where

information has been acquired unlawfully by a newspaper or by a source, government may ever

punish not only the unlawful acquisition, but the ensuing publication as well.”) (bold emphasis

added; citations omitted).2 Courts following Bartnicki have held that the distinction between

lawfully and unlawfully obtained information is “crucial” for the constitutional analysis. See

Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 940, 951-954 (7th Cir. 2015) (newspaper

“possesses no constitutional right either to obtain the officers’ personal information from

government records or to subsequently publish that unlawfully obtained information”) (emphasis

added). Tellingly, Defendants fail to cite Bartnicki or the cases rejecting a constitutional right to

publish information that is unlawfully obtained by the defendant.

2 Nor did CBS, Inc. resolve the question. As the California Supreme has concluded, CBS, Inc. is not only “arguably not binding on this court” because it is “a single-justice order,” but the main problem with the injunction in that case was “the lack of clear evidence establishing that CBS had acquired [the] information by improper means.” Bunner, 31 Cal. 4th at 887. This case does not have that problem.


Instead, Defendants improperly rely on a single case decided by the Sixth Circuit (In re

King World Productions, Inc., 898 F.2d 56 (6th Cir. 1990)) that pre-dates, and conflicts with,

Bartnicki and misconstrues New York Times. Indeed, at least one California court has expressly

rejected the holding and reasoning of King World. See Marin Independent Journal v. Municipal

Court, 12 Cal. App. 4th 1712, 1722 fn. 3 (1993) (holding that journalist did not have a

constitutional right to publish photos obtained unlawfully). Defendants have no constitutional

right to disseminate the secret video that they recorded in violation of the Act. And the requested

injunction is not an invalid prior restraint under Madsen.

IV. PLAINTIFFS WILL PREVAIL UNDER THE INVASION OF PRIVACY ACT

Plaintiffs need to establish “some possibility” that they will prevail on the merits of their

claim at trial. Hunt v. Superior Court, 21 Cal. 4th 984, 999 (1999). As set forth in Plaintiffs’

application, and reinforced by the video footage, Plaintiffs easily meet this standard. Defendants’

three merits-related arguments all fail.

A. Wilkins v. NBC Is Inapposite

Defendants argue that Wilkins v. Nat’l Broad. Co., 71 Cal. App. 4th 1066 (1999) is

determinative of the merits question. Opp. pp. 5-6. However, as Plaintiffs demonstrated in their

moving papers, Wilkins is inapposite. In that case, the court applied the wrong legal standard.

The court in Wilkins improperly focused on the content of the communication, rather than the

parties’ expectations of being overheard or recorded. See Turnbull v. ABC, No. 03-3554, 2004

U.S. Dist. LEXIS 24351, at *9 & fn. 4 (C.D. Cal. Aug. 19, 2004) (noting that Wilkins test “was

discarded by the California Supreme Court in Flanagan”). The fact that Wilkins relied upon a

discarded legal standard alone makes it inapposite. Moreover, contrary to Defendants’ assertion,

Wilkins is not “practically identical to the situation here.” Opp. p. 6. As discussed below, other

than the fact that both meetings took place in a restaurant, they are markedly dissimilar.

B. Defendants’ Evidence Does Not Override Plaintiffs’ Merits Showing

A communication is “confidential” if a party had “an objectively reasonable expectation

that the conversation [was] not being overheard or recorded.” Flanagan v. Flanagan, 27 Cal. 4th


766, 768 (2002). Defendants argue that their evidence establishes that the May 22 meeting was

not confidential. Opp. pp. 7-10. Defendants submit Daleiden’s declaration recounting his

recollection of the meeting and four short excerpts of the secret video recording. Based on this

evidence, Defendants argue that the meeting did not occur in a “secluded place,” that Dyer did

not keep her voice “at a low volume,” and that Dyer did not caution anyone to lower their voices

or halt the conversation when staff approached. None of these claims help Defendants.

Defendants’ video clips and the video as a whole support the conclusion that the May 22

meeting was confidential. First, the conversations of the other diners at the restaurant cannot be

overheard in any of the video. See Defs. Ex. A, Clips A1-A4. Given that the video shows that

participants in the meeting could not hear the conversations of the people around them, it is

certainly reasonable that Dyer, Cooksy, and Barr believed that others were not listening to their

conversation. Second, contrary to Defendants assertions, the video shows that the meeting took

place in the back corner of the restaurant with no one sitting near their table until the very end of

the meeting. This is exactly what was stated in Plaintiffs’ declarations. Third, Defendants

attempt to attack Dyer’s recollection of cautioning the participants to lower their voice when in

fact it was Cooksy who made the comment (and Dyer agreed to it). Id., Clip A2. Whether it was

Cooksy or Dyer is irrelevant because the fact is that the video clearly shows that they did not

want to be overheard. Fourth, the fact that on two short occasions the conversations continued

while the server was present for a total of 25 seconds does not change the result. Id., Clips A3-

A4. Not only do Defendants fail to mention that the conversation did stop during other times that

the server approached the table, but they ignore the relevant case law cited by Plaintiffs on this

issue. See App. pp. 10-11. The evidence shows that the meeting was confidential under the Act.

C. Defendants’ Section 633.5 Justification Fails

Defendants audaciously argue that their illegal actions were justified because they

“reasonably believed” that Plaintiffs were involved in committing the crimes of partial birth

abortion and murder. Opp. pp. 10-12. The Act “exempts” persons who secretly record a private

conversation if it is “reasonably believed to relate to the commission by another party to the


communication of … any felony involving violence against the person.” Penal Code § 633.5

(emphasis added). A “reasonable belief” involves two questions: (1) what the recorder actually

believed at the time of the recording; and (2) whether that belief was reasonable. Kuschner v.

Nationwide Credit, Inc., 256 F.R.D. 684, 689 (E.D. Cal. 2009). The sole basis for Defendants’

Section 633.5 defense are the hearsay statement in Daleiden’s declaration that Holly O’Donnell (a

StemExpress former employee) told him that the company has received fully intact fetuses and

the unsupported allegation that Dyer’s statement stated that the company “see[s] a lot of intact

fetuses.” Opp. p. 11. This evidence is demonstrably false and wholly insufficient to justify

Defendants’ illegal conduct.

Defendants’ belief that Plaintiffs are “harvesting and killing live babies for resale” (Opp.

p. 11) is neither objectively reasonable nor credible from a subjective standpoint. First, abortion

before viability is not murder in California. Health & Saf. Code § 123466. While Defendants

may wish that abortions were illegal and constitute murder, that is simply not the law. This alone

precludes Defendants’ purported “defense” of their illegal conduct. Second, Defendants have no

evidence that would even remotely support the claim that Plaintiffs participated in any abortion

procedure involving a viable fetus. To state the obvious, StemExpress does not perform

abortions. And contrary to Daleiden’s hearsay statements, StemExpress has never received a

living, fully-intact fetus from an abortion clinic. Dyer Decl. ¶ _.

Nor did Dyer ever say that StemExpress received intact fetuses during the May 22 dinner.

Defendants’ statements to the contrary are simply fabricated. What Dyer said was that the

company receives “intact cases,” referring to a complete tissue specimen (such as a whole liver or

heart), not a whole fetus. See Defs. Ex. A, Clip A1 (responding to question about “intact

specimens”); Dyer Decl. ¶ _. Indeed, the context of the rest of the conversation surrounding

Dyer’s statement plainly demonstrates that she was talking about whole liver specimens. Id. ¶ _.

And Defendants know that they are misleading the Court about this issue. See Jones Decl. ¶__,

Ex. _ (8/14/15 CMP website statement that “StemExpress leadership confirmed to CMP

investigators in May they are struggling to meet demand for intact fetal livers”) (emphasis


added). Furthermore, the veracity of Daleiden’s subjective belief that Plaintiffs were involved in

such practices is highly questionable given that he never reported any “crimes” to law

enforcement during his two-year “investigation.” Defendants’ Section 633.5 defense fails.

V. PLAINTIFFS’ IRREPARABLE HARM OUTWEIGHS DEFENDANTS’ “HARM”

As Plaintiffs have shown, they face irreparable harm from Defendants’ illegal conduct on

several levels. First, the entire point of the Act is to protect a speaker’s right to control the

manner of distribution of their speech. This would be directly infringed upon if Defendants are

permitted to control the dissemination of the video. Ribas, 38 Cal. 3d at 361. Second,

Defendants do not contest that they intend to publicly release an edited version of the video that is

designed to provoke a hostile reaction. The personal safety threat to Plaintiffs and their

employees, which is already a grave concern, will get worse if this occurs. Dyer Decl. ¶¶ 46-51.

Defendants argue that Plaintiffs will not face irreparable harm if the injunction is denied.

Opp. pp. 12-14. As to the release of a misleadingly-edited video, Defendants admit that is their

intention. Instead, they contend that any harm caused by such a video will be eased by the

concurrent release of the full-length video of the meeting. As with their other arguments, this

misses the entire point of the injunction. Again, it is not the content of the meeting that Plaintiffs

seek to enjoin. Rather, it is the form in which the material is released. Defendants seek to release

the content in a form they do not have a right to for purposes of inflaming others to endanger

Plaintiffs and their business. Indeed, Defendants concede that the video “might cause” them to

suffer harassment. Id. p. 14. Clearly, preventing its release will necessarily prevent such harm.

Notably, Defendants do not argue that they will suffer any harm if the injunction is

granted. Instead, they argue that the “public interest” weighs in favor of denying the injunction.

Opp. pp. 14-15. However, the only public interest cited by Defendants is “to make Plaintiffs’

disreputable and potentially criminally conduct public” and to advance ongoing congressional

investigations into the false allegations started by Defendants. Id. p. 14. This argument fails,

however, given that the requested injunction does not bar the release of any content. At most, this

assertion merely restates the constitutional concerns Defendants have wrongfully invoked. If any


public interest is relevant, it is the one served by protecting Plaintiffs’ privacy rights.3

VI. CONCLUSION

For the foregoing reasons, the Court should enter the requested preliminary injunction.

Dated: August 19, 2015 McDERMOTT WILL & EMERY LLP

By:CHARLES E. WEIRAttorneys for Plaintiffs

3 Defendants do not address the bond issue in their opposition and have waived the right to request one. See Smith v. Adventist Health System/West, 182 Cal. App. 4th 729, 741-743 (2010) (party may waive or forfeit right to injunction bond where they consciously choose to no address it). Even so, if any bond is required by the Court, it should be minimal as Defendants have not argued that they will suffer any harm, monetary or otherwise, if the preliminary injunction is granted. See Civ. Proc. Code § 529(a).

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StemExpress filing 8-21-15 for preliminary injunction