Freedom of Conscience Defense Fund · Plaintiffs’ Claim for Violation of Cal. Penal Code § 632...

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DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236

Charles S. LiMandri (CA Bar No. 110841) Paul M. Jonna (CA Bar No. 265389) Jeffrey M. Trissell (CA Bar No. 292480) B. Dean Wilson (CA Bar No. 305844) FREEDOM OF CONSCIENCE DEFENSE FUND P.O. Box 9520 Rancho Santa Fe, CA 92067 Tel: (858) 759-9948 [email protected]

Denise M. Harle (CA Bar No. 275561) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd., NE Suite D1100 Lawrenceville, GA 30043 Tel: (770) 339-0774 [email protected]

Harmeet K. Dhillon (CA Bar No. 207873) Gregory R. Michael (CA Bar No. 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 415-433-1700 415-520-6593 (fax) [email protected]

Attorneys for Defendant David Daleiden

Thomas Brejcha, pro hac vice Peter Breen, pro hac vice THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250 Chicago, IL 60606 Tel: (312) 782-1680 [email protected] [email protected]

Matthew F. Heffron, pro hac vice THOMAS MORE SOCIETY 10506 Burt Circle, Suite 110 501 Scoular Building Omaha, NE 68114 Tel: (312) 782-1680 [email protected]

Attorneys for Defendant David Daleiden

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al.,

Plaintiff, vs.

THE CENTER FOR MEDICAL PROGRESS, et al.,

Defendants.

Case No. 3:16-CV-00236 (WHO)

Hon. William H. Orrick III

Defendant David Daleiden’s Motion for Summary Judgment

Hearing Date: July 17, 2019, 2:00 p.m. Courtroom 2, 17th Floor

PUBLIC VERSION

Case 3:16-cv-00236-WHO Document 609 Filed 05/23/19 of 29

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TABLE OF CONTENTS

I N T R O D U C T I O N ................................................................................................................. 1

L E G A L S T A N D A R D ............................................................................................................ 1

A R G U M E N T ........................................................................................................................... 2

1. Plaintiffs’ Claim for Violation of Cal. Penal Code § 632 Fails................................ 2

1.1. Legal Background: California Recording Statute ........................................ 2

1.2. No Standing & No Actual or Reasonable Expectation Conversations Could Not Be Overheard .................................................... 4

1.3. No “Intentional” Recording of Confidential Communications. ......................................................................................... 7

1.4. No Need for Two-Party Consent ................................................................ 7

2. Plaintiffs’ Claim for Invasion of Privacy: Cal. Const. Fails .................................... 8

2.1. Legal Background on Standing ................................................................... 8

2.2. Legal Background on Cal. Const. Art I, § I................................................. 9

2.3. The Cal. Constitution Claims Fail ............................................................. 11

3. Plaintiffs’ Claim for Trespass at the 2014 NAF Conference Fails ........................ 15

4. Plaintiffs’ Claim for Common Law Trespass Fails ................................................ 16

5. Plaintiffs’ Claims for Fraud and Conspiracy to Defraud Fail ................................ 19

C O N C L U S I O N ...................................................................................................................... 19


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TABLE OF AUTHORITIES Cases: Am. Transmission, Inc. v. Channel 7 of Detroit, Inc. 18

239 Mich. App. 695 (2000) Animal Legal Def. Fund v. Wasden 15, 17, 18, 19

878 F.3d 1184 (9th Cir. 2018) Ass’n for Los Angeles Deputy Sheriffs v. Los Angeles Times Commc’ns LLC 10, 12

239 Cal. App. 4th 808 (2015) Baughman v. State of California 10

38 Cal. App. 4th 182 (1995) Bona Fide Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751-GPC-DHB, 4

2016 WL 3543699 (S.D. Cal. June 29, 2016) Carroll v. Lynch 3

698 F.3d 561 (7th Cir. 2012) Celotex Corp. v. Catrett 1

477 U.S. 317 (1986) Conlay v. Baylor Coll. of Med. 16

688 F. Supp. 2d 586 (S.D. Tex. 2010) Cnty. of L.A. v. L.A. Cnty. Emp. Relations Comm’n 9

56 Cal. 4th 905 (2013)

Desnick v. Am. Broad. Companies, Inc. 18 44 F.3d 1345 (7th Cir. 1995)

Dominguez v. Babcock 16

727 P.2d 362 (Colo. 1986) Envtl. Processing Sys., L.C. v. FPL Farming Ltd. 16

457 S.W.3d 414 (Tex. 2015) Faulkner v. ADT Sec. Servs., Inc. 4

706 F.3d 1017 (9th Cir. 2013) Ferris v. Santa Clara Cty. 13

891 F.2d 715 (9th Cir. 1989)

Flanagan v. Flanagan 4 27 Cal. 4th 766 (2002)

Fleck & Assocs., Inc. v. Phoenix, City of, an Arizona Mun. Corp. 8

471 F.3d 1100 (9th Cir. 2006) Fleury v. Harper & Row, Publishers, Inc. 11

698 F.2d 1022 (9th Cir. 1983)


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TABLE OF AUTHORITIES Cases: FOAGLA, Inc. v. 7-Eleven, Inc. 11

No. EDCV 14-1432 JGB (SPx), 2014 WL 12601505 (C.D. Cal. Dec. 18, 2014)

Food Lion, Inc. v. Capital Cities/ABC, Inc. 15 194 F.3d 505 (4th Cir. 1999)

Food Lion, Inc. v. Capital Cities/ABC, Inc. 15

964 F. Supp. 956 (M.D.N.C. 1997) Franklin v. Ocwen Loan Servicing, LLC 2, 15

No. 18-CV-03333-SI, 2018 WL 5923450 (N.D. Cal. Nov. 13, 2018) Gifford v. City of Colorado Springs 16

815 P.2d 1008 (Colo. App. 1991) Gonzales v. Uber Techs., Inc. 10

305 F. Supp. 3d 1078 (N.D. Cal. 2018) Hang On, Inc. v. City of Arlington 8

65 F.3d 1248 (5th Cir. 1995) Hataishi v. First Am. Home Buyers Prot. Corp. 4

223 Cal. App. 4th 1454 (2014) Hawthorne v. Fisher 16

33 F. Supp. 891 (N.D. Tex. 1940) Hill v. NCAA 9

7 Cal. 4th 1 (1994) Howe v. State 17

10 Ind. 492 (1858) Hunt v. Washington State Apple Advert. Comm’n 8

432 U.S. 333 (1977) Illinois Citizens Comm. for Broad. v. F.C.C. 13

515 F.2d 397 (D.C. Cir. 1974) In re Trever P. v. 2, 3, 7

14 Cal. App. 5th 486 (Ct. App. 2017) In re Yahoo Mail Litig. 9, 10, 12

7 F. Supp. 3d 1016 (N.D. Cal. 2014) Int’l Fed’n of Prof’l & Tech. Engineers, Local 21, AFL-CIO v. Superior Court 10

42 Cal. 4th 319 (2007) Int’l Union v. Dana Corp. 13

278 F.3d 548 (6th Cir. 2002)


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TABLE OF AUTHORITIES

Cases: Joshua Gamez v. Hilton Grand Vacations Inc. 3

No. 2:18-CV-04803 GW (JPRx), 2018 WL 8050479 (C.D. Cal. Oct. 22, 2018) Kearney v. Salomon Smith Barney, Inc. 4

39 Cal. 4th 95 (2006) Keepers, Inc. v. City of Milford 8

807 F.3d 24 (2d Cir. 2015) Kurinij v. Hanna & Morton 19

55 Cal. App. 4th 853 (1997) Kyung Park v. Holder 13

572 F.3d 619 (9th Cir. 2009) Lake v. Reno 13

226 F.3d 141 (2d Cir. 2000) Lake v. Reno 13

533 U.S. 913 (2001) Landry’s, Inc. v. Animal Legal Def. Fund 16

566 S.W.3d 41 (Tex. App. 2018) Lieberman v. KCOP Television, Inc. 2, 15

110 Cal. App. 4th 156 (2003) Lilly Indus., Inc. v. Health-Chem Corp. 17

974 F. Supp. 702 (S.D. Ind. 1997) Los Angeles Gay & Lesbian Ctr. v. Superior Court 9, 10

194 Cal. App. 4th 288 (2011) Lubetzky v. State Bar 3, 8

54 Cal. 3d 308 (1991) Manela v. Superior Court 10

177 Cal. App. 4th 1139 (2009) Mclellan v. State 2

124 Nev. 263 (2008) McCollum v. California Dep’t of Corr. & Rehab. 13

647 F.3d 870 (9th Cir. 2011) MD II Entm’t, Inc. v. City of Dallas, Tex. 13

28 F.3d 492 (5th Cir. 1994) Moore v. Telfon Commc’ns Corp. 3

589 F.2d 959 (9th Cir. 1978)


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vi DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236


Cases:

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)

Nat’l Ass’n of Letter Carriers, AFL-CIO v. U.S. Postal Serv. 12 604 F. Supp. 2d 665 (S.D.N.Y. 2009)

Nicholson v. McClatchy Newspapers 19 177 Cal. App. 3d 509 (Ct. App. 1986)

NorCal Tea Party Patriots v. I.R.S., No. 1:13-CV-341 11 2014 WL 3547369, at *4 (S.D. Ohio July 17, 2014)

Northside Realty Assocs., Inc. v. United States 17 605 F.2d 1348 (5th Cir. 1979)

Novell, Inc. v. Gribben 8, 9 168 F.3d 500 (9th Cir. 1999)

Orcilla v. Big Sur, Inc. 19 244 Cal. App. 4th 982 (2016)

Overstock.com, Inc. v. Goldman Sachs Grp., Inc. 10 231 Cal. App. 4th 471 (2014)

Penley v. McDowell Cty. Bd. of Educ. 1 876 F.3d 646 (4th Cir. 2017)

People v. Ayers 3 51 Cal. App. 3d 370 (Ct. App. 1975)

People v. Suite 3 101 Cal. App. 3d 680 (Ct. App. 1980)

People v. Superior Court of Los Angeles Cty. 2, 6, 7 70 Cal. 2d 123 (1969)

Pitts Sales, Inc. v. King World Prods., Inc. 17 No. 04-60664-CIV-COHN, 2005 WL 4038673 (Bankr. S.D. Fla. July 29, 2005)

Planned Parenthood Arizona, Inc. v. Brnovich 9 172 F. Supp. 3d 1075 (D. Ariz. 2016)

Planned Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc v. Smith 13, 14

913 F.3d 551 (5th Cir. 2019)

Planned Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc. v. Smith 14

914 F.3d 994 (5th Cir. 2019)


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vii DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236


Cases:

Region 8 Forest Serv. Timber Purchasers Council v. Alcock 8 993 F.2d 800 (11th Cir. 1993)

Reynolds v. City & Cty. of San Francisco 4 No. C 09-0301 RS, 2012 WL 1143830 (N.D. Cal. Mar. 30, 2012)

San Francisco Apartment Ass’n v. City & Cty. of San Francisco 10 881 F.3d 1169 (9th Cir. 2018)

SCC Acquisitions, Inc. v. Superior Court 8 243 Cal. App. 4th 741 (2015)

Shulman v. Grp. W Prods., Inc. 14 18 Cal. 4th 200 (1998)

Sipple v. Chronicle Publ’g Co. 14 154 Cal. App. 3d 1040 (Ct. App. 1984)

Sonoma Cty. Employees’ Ret. Assn. v. Superior Court 10 198 Cal. App. 4th 986 (2011)

United States v. Ellis 15 121 F. Supp. 3d 927 (N.D. Cal. 2015)

United States v. Mun. Bond & Collection Servs., Inc. 13 810 F.2d 46 (3d Cir. 1987)

Viceroy Gold Corp. v. Aubry 12, 13 75 F.3d 482 (9th Cir. 1996)

Videckis v. Pepperdine Univ. 10 100 F. Supp. 3d 927 (C.D. Cal. 2015)

Vo v. City of Garden Grove 10 115 Cal. App. 4th 425 (2004)

Wilen v. Falkenstein 16 191 S.W.3d 791 (Tex. App. 2006)

Zeliff v. Sabatino 19 15 N.J. 70 (1954)

Federal Statutes:

FED. R. CIV. P. 56(c) 1


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viii DEF. DALEIDEN’S MTN. FOR SUMMARY JUDGMENT—3:16-CV-236


Other Statutes:

Cal. Penal Code § 630 15

Cal. Penal Code § 632 1, 2, 4, 5, 6, 7, 14, 15, 18

Cal. Penal Code § 632(a) 2

Cal. Penal Code § 632(c) 2

Cal. Penal Code § 633.5 2, 3, 7

Cal. Penal Code § 634 1, 14, 15, 18

Cal. Penal Code § 637.2 14, 15

Other Authorities:

7A JOHN W. GRUND, ET AL., COLO. PERSONAL INJURY PRACTICE 16 § 29:29 (3D ED. 2018)

82 Cal. Ops. Cal. Att’y Gen. 148 (1999) 3

HARPER ON TORTS § 226 (1933) 19

Illinois’ recording statute. 720 Ill. Comp. Stat. Ann. 5/14–3(i) 3

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 152 11

RESTATEMENT (SECOND) OF TORTS § 892B 16

RESTATEMENT (SECOND) OF TORTS § 892 (AM. LAW INST. 1979) 16


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NOTICE OF MOTION

TO PLAINTIFF AND ITS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on Wednesday, July 17, 2019, at 2:00 p.m. in Courtroom

2 of the Honorable William H. Orrick III at the United States District Court for the Northern

District of California, 17th Floor, 450 Golden Gate Ave., San Francisco, CA 94102, Defendant

David Daleiden will, and hereby does move for summary judgment on the ground that there is no

genuine issue as to any material fact and that David Daleiden is entitled to judgment as a matter of

law for the reason that:

□ Plaintiffs’ claims for Violation of the California recording statutes fail because (1) many

of the individuals recorded were not speaking on behalf of their employers; (2) many of

the individuals recorded had no actual or reasonable expectation that their conversations

could not be overheard; (3) Daleiden did not intend to record confidential

communications; and (4) due to Cal. Penal Code § 633.5, there was no need to obtain

consent of the individuals recorded;

□ Plaintiffs’ claim for Invasion of Privacy: California Constitution fails because (1)

Plaintiffs lack standing to bring the claim on behalf of their employees; (2) no private

content was unearthed; and (3) competing concerns make Daleiden’s actions not

actionable;

□ Plaintiffs’ claim for Trespass under Cal. Penal Code § 634 fails because (1) Daleiden did

not trespass; (2) Daleiden did not intend to violate Cal. Penal Code § 634; and (3)

Plaintiffs were not injured;

□ Plaintiffs’ claim for common law trespass in Denver and Houston fails because

misrepresentation does not vitiate consent; and

□ Plaintiffs’ remaining claims fail as stated in co-defendants’ motions for summary judgment.

This motion will be based upon the attached points and authorities, the declarations of

Jeffrey M. Trissell, Esq. and David Daleiden, the concurrent motions for summary judgment filed

by various co-defendants (along with their supporting declarations), all pleadings and records on file

in this action, and any argument at the hearing on this matter.


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I N T R O D U C T I O N

Defendant David Daleiden hereby brings this motion for summary judgment. Defendant

Daleiden focuses on the claims which concern conduct which he performed, and which are not

addressed by other co-defendants’ motions. These include (1) the Ninth Claim for Relief –

Violation of Cal. Penal Code § 632; (2) the Fourteenth Claim for Relief – Invasion of Privacy: Cal.

Const.; (3) the Tenth Claim for Relief – Violation of Cal. Penal Code § 634; and (4) a portion of the

Sixth Claim for Relief – Trespass at offices in Colorado and Texas.

The remaining causes of action are addressed by various co-defendants’ motions for

summary judgment, and are expressly incorporated herein by reference.

L E G A L S T A N D A R D

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

material fact and the moving party is entitled to summary judgment as a matter of law.” FED. R.

CIV. P. 56(c). “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to

make a showing sufficient to establish the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). As a result, “[w]hile courts are not obligated to do the work of the litigants . . . , district

courts may enter summary judgment sua sponte so long as the losing party was on notice that she

had to come forward with all of her evidence.” Penley v. McDowell Cty. Bd. of Educ., 876 F.3d 646,

661 (4th Cir. 2017).1 Defendant Daleiden hereby places Plaintiffs on notice that he does not believe

they have the evidence to establish their claims against him, thereby shifting the burden to them to

establish their case.

/ / /

/ / /

/ / /

/ / /

1 Except where noted, emphasis is always added, and citations, quotation marks, brackets, and ellipses are always omitted.


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A R G U M E N T

1. Plaintiffs’ Claim for Violation of Cal. Penal Code § 632 Fails

1.1. Legal Background: California Recording Statute

Plaintiffs allege that Defendant Daleiden violated Cal. Penal Code § 632 when he

“intentionally recorded confidential communications made during” a NAF conference in San

Francisco, and made during two restaurant meetings with Plaintiffs’ staff. FAC ¶¶ 212–13. California

law provides that a person may not “[1] intentionally and [2] without the consent of all parties to a

confidential communication,” [3] use a “recording device to eavesdrop upon or record the

confidential communication.” Cal. Penal Code § 632(a). However, [4] California law permits

“surreptitious recording if one party consents to being recorded for the purpose of obtaining evidence

of certain specified crimes.” In re Trever P., 14 Cal. App. 5th 486, 488 (Ct. App. 2017). The term

“confidential communication” “excludes [i] a communication made in a public gathering . . . or [ii] in

any other circumstance in which the parties to the communication may reasonably expect that the

communication may be overheard or recorded.” Cal. Penal Code § 632(c). Finally, [5] the recording

statute does not prohibit subsequent publication of the recorded information, and damages flowing

from the publication are not recoverable. Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156,

167 (2003) (limiting actual damages to examples such as emotional distress); see also Franklin v. Ocwen

Loan Servicing, LLC, No. 18-CV-03333-SI, 2018 WL 5923450, at *6 (N.D. Cal. Nov. 13, 2018).

With respect to [1] above, California uses a strict definition of intentionally, requiring mal-

intent (unlike the Federal, Florida, and Maryland recording statutes). It is not the case “that the

word ‘intentionally’ as used in subdivision (a) goes only to the act of putting the recording

equipment in operation.” People v. Superior Court of Los Angeles Cty., 70 Cal. 2d 123, 132 (1969).

“Eavesdropping is not one of that class of crimes that affects public health, welfare or safety,” and

therefore “it is not the purpose of the statute to punish a person who intends to make a recording

but only a person who intends to make a recording of a confidential communication.” Id. at 132–33.

With respect to [4], “California law does not require the consent of both parties to the

communication to constitute a lawful interception, but rather requires consent by only one party”

under Cal. Penal Code § 633.5. Mclellan v. State, 124 Nev. 263, 267 (2008). That statute requires


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[i] the suspicion of the commission by the other party of a felony involving violence against a

person; [ii] the actual purpose of the recording being to obtain evidence related to that felony; and

[iii] a reasonable belief that the evidence to be obtained would relate to the felony. Cal. Penal Code

§ 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

consent makes the eavesdropping lawful provided it is for the purpose of obtaining evidence

reasonably believed to relate to the commission by another party of certain offenses”); 82 Cal. Ops.

Cal. Att’y Gen. 148 (1999) (“[A] telephone conversation may be recorded in order to obtain

evidence reasonably believed to relate to [a violent] crime.”).

The recording, however, may “fail[] to capture the anticipated evidence,” and need not be

made “to gather evidence for use in a criminal prosecution.” Lubetzky v. State Bar, 54 Cal. 3d 308,

321 (1991); see People v. Ayers, 51 Cal. App. 3d 370, 377 (Ct. App. 1975) (recordings “were made

pursuant to a plan to . . . pretend[] to participate in the plot and to perpetuate the information for

their own purpose”). For example, the statute permits “routinely tape-record[ing] all incoming

calls on [] emergency lines.” People v. Suite, 101 Cal. App. 3d 680, 688 (Ct. App. 1980).2

A review of other recording statutes reveals only one similar provision that counsel could

find, that appearing in Illinois’ recording statute. 720 Ill. Comp. Stat. Ann. 5/14–3(i). Case law

interpreting it reveals a similar generous interpretation: “Even so, the exemption does not require

proof beyond a reasonable doubt or even the probable cause required for arrest or indictment.

Instead, it requires something far less—reasonable suspicion. Thus, that the district attorney did

not charge Carroll with any crime—either telephone harassment or something else—does not

preclude Pat Kelliher from reasonably believing that Carroll was committing or would commit a

crime against Jim Kelliher.” Carroll v. Lynch, 698 F.3d 561, 568 (7th Cir. 2012); see also Dkt. 374-6,

Plaintiffs’ Opposition to Defendants’ Motion to Compel, 14:22–15:1 (Dec. 19, 2018) (comparing

§ 633.5 to probable cause standard for searches).

2 See also Joshua Gamez v. Hilton Grand Vacations Inc., No. 2:18-CV-04803 GW (JPRx), 2018 WL 8050479, at *3 (C.D. Cal. Oct. 22, 2018) (“§ 633.5 specifically exempts one party to a confidential 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 conversation for the purpose of obtaining evidence reasonably believed to relate to the crime”).


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With respect to [ii], California also differs from the Federal, Florida, and Maryland

standard. Here, “a conversation is confidential if a party to that conversation has an objectively

reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v.

Flanagan, 27 Cal. 4th 766, 768 (2002). It is not relevant whether “the party has an objectively

reasonable expectation that the content will not later be divulged to third parties.” Id. In other

words, “the statute prohibits monitoring or recording only without the knowledge or consent of all

parties to the conversation and only if a party to that conversation has an objectively reasonable

expectation that the conversation is not being overheard or recorded.” Hataishi v. First Am. Home

Buyers Prot. Corp., 223 Cal. App. 4th 1454, 1465 (2014) (citing Kearney v. Salomon Smith Barney,

Inc., 39 Cal. 4th 95, 117 (2006)).3

“The standard of confidentiality is an objective one defined in terms of reasonableness.”

Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). As such, claims under Cal.

Penal Code § 632 are properly dismissed on summary judgment. Reynolds v. City & Cty. of San

Francisco, No. C 09-0301 RS, 2012 WL 1143830, at *6 (N.D. Cal. Mar. 30, 2012) (“Under all of these

circumstances, no reasonable trier of fact could conclude that Reynolds retained an expectation of

privacy in his conversation with the stalking suspect that was reasonable, from either a subjective or

objective perspective. Accordingly, summary judgment must enter against him on his claims arising

from alleged violation[] of . . . Cal. Penal Code § 632.”), aff’d, 576 F. App’x 698 (9th Cir. 2014). 1.2. No Standing & No Actual or Reasonable Expectation Conversations Could Not

Be Overheard

As an initial note, according to the complaint, the following eight Plaintiffs are bringing a

claim for violation of the California recording statute: PPFA, PPNorCal, PPPSW, PPMM, PPOSB,

PPGC, PPCFC, and PPRM. FAC 57:8–10. But PPPSW, PPGC, and PPRM have failed to identify

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 privacy interests in private conversations” and as such Defendant Daleiden’s arguments “that 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. 30, 2016). Respectfully, as explained in Hataishi, this is incorrect.


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any individuals allegedly recorded in violation of Cal. Penal Code § 632. Ex. 33.4 Therefore,

summary judgment should be granted with respect to PPPSW, PPGC, and PPRM’s claims for

violation of Cal. Penal Code § 632, leaving only PPFA, PPNorCal, PPMM, PPOSB, and PPCFC.

Further, for a corporation to maintain a claim for violation of the California recording

statute, it must establish that the defendant “recorded conversations with [its employees] in their

capacities as [the corporation’s] employees.” Bona Fide Conglomerate, Inc. v. SourceAmerica, No.

3:14-cv-00751-GPC-DHB, 2016 WL 3543699, at *6 (S.D. Cal. June 29, 2016). In addition to not

having an actual expectation of confidentiality, many of the recorded individuals were not speaking

on behalf of their employers when they were recorded.

PPFA’s Claims. Neither Dr. Gatter nor Ms. Felczer (recorded by Defendant Daleiden at a

restaurant in Southern California) were employed by any of the above entities. #106–11, 115–20.5

Dr. Gatter was the director of the Planned Parenthood Medical Directors’ Council—but she was

not a PPFA employee—and she

Ex. 36, Gatter Depo., 265:17–266:23; Ex. 37, PPPSGV Depo., 21:9–22:16. Further,

during that meeting, their conversation could be overheard by the wait staff. Ex. 36, Gatter Depo.,

279:9–19

(objection omitted). This is confirmed by Defendant Daleiden. See

Daleiden Decl., ¶ 22.

/ / /

4 Exhibits 26–50 are attached to the Declaration of Jeffrey M. Trissell, Esq. Exhibit 53 is attached to the Declaration of Gregory Michael, Esq. 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 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 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 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 number of the 147 items correspond to Plaintiffs not asserting a § 632 claim and are thus not 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 to review the relevant recordings to confirm this fact.


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This leaves only Dr. Nucatola, #68–69, 76–88, and Doe1023, #35. With respect to Dr.

Nucatola, she was recorded on three different occasions: at a restaurant meeting in Southern

California and twice at the NAF tradeshow in Northern California.

Ex. 38, Nucatola Depo., 342:11–349:18.

Id. at

232:2–233:3

242:25–243:15

(objection omitted), Ex. 2429 (Police Report: “[D]ue to the area in which she was being recorded at

(in a public restaurant) the conversation could be easily overheard by other people.”). This was

confirmed by PPFA itself and Defendant Daleiden. Ex. 53, PPFA Depo., 267:10–271:12

; Daleiden Decl., ¶ 21. With respect to Doe1023 (#35), PPFA

Ex. 53, PPFA Depo., 263:23–267: 9.

PPNorCal’s Claims.

. #99–101.

Ex. 39, PPNorCal Depo., 28:10–13, 28:23–29:1, 43:1–45:11.

Id. at 62:7–63:7, 66:1–12, 67:13–69:9 (Doe8001); id. at 80:20–

81:3, 82:14–20, 83:18–84:13, 85:14–23 (Doe8002).6

PPMM’s Claims.

Ex. 40, PPMM Depo., 152:8–153:22.

PPOSB’s Claims.

Ex. 41, PPOSB Depo., 228:8–9.7

PPCFC’s Claims.

42, PPGC/CFC Depo., 90:12–92:13.

6 With respect to this clip, . Ex. 39, PPNorCal Depo., 73:8–77:15, 280:3–284:8. 7 As far as the defense can tell, this is simply an error.


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Thus, summary judgment should be readily granted as to all claims except PPFA’s claim for

unlawful recording of Nucatola at NAF in San Francisco, #68–69. However, that claim should be

stricken as stated in the accompanying Motion to Strike. In any event, for the reasons stated below,

it also fails.

1.3. No “Intentional” Recording of Confidential Communications.

Plaintiffs’ claims for violation of Cal. Penal Code § 632 also fail because Plaintiffs cannot

establish that Defendant Daleiden intended to record a conversation of which the other party could

reasonably believe it could not be overheard. See People v. Superior Court of Los Angeles Cty., 70 Cal. 2d

123, 132 (1969). At the time he made his recordings, Defendant Daleiden was acutely aware of Cal.

Penal Code § 632. Indeed, CMP had to present evidence to their donors that their conduct would not

be violating it. Daleiden Decl., ¶ 19. As a result, Defendant Daleiden in good faith believed that he

would not be recording “confidential communications” and only intended to engage in legal

recording. That is why Defendant Daleiden only recorded in California at large tradeshows and in

public restaurants—because he believed by doing so he would not be recording “confidential

communications.” Id. There is no evidence to the contrary. As stated by the California Supreme

Court, “the recording of a confidential conversation is intentional if the person using the recording

equipment does so with the purpose or desire of recording a confidential conversation.” Superior

Court of Los Angeles Cty., 70 Cal. 2d at 134. Here, the unrefuted evidence shows that was neither

Daleiden’s purpose nor desire; therefore Plaintiffs’ claims fail.

1.4. No Need for Two-Party Consent

As stated above, recording in California with only one-party consent is permissible under

Cal. Penal Code § 633.5 if: [i] there is suspicion that the other party is committing felonies involving

violence against a person; [ii] the actual purpose of the recording is to obtain evidence related to

those felonies; and [iii] the recorder has a subjectively and objectively reasonable belief that the

evidence to be obtained could relate to the felony. See In re Trever P., 14 Cal. App. 5th at 497 n.8.

Here, with respect to [i] and [ii], Defendant Daleiden has been steadfast in his assertion that

the entire purpose of CMP’s investigative journalism project was to uncover evidence of

egregiously illegal conduct by Plaintiffs and others profiteering from the transfer of human organs—


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including the murder of innocent babies and the battery of women. This is the unrefuted purpose of

the project and belief of Daleiden. See Daleiden Decl., ¶¶ 3–6.

With respect to [iii], as outlined in the accompanying declaration, Defendant Daleiden was

informed and believed (and later confirmed), that certain practices associated with fetal tissue

procurement constituted crimes of violence. Daleiden Decl., ¶¶ 23–52. Based on the information

they had at the time—including that Drs. Gatter and Nucatola had actually participated in fetal

tissue procurement8—this belief was reasonable, and sufficient for them to “routinely” record

communications related to their investigation, Suite, 101 Cal. App. 3d at 688, regardless of whether

any evidence of criminality was actually uncovered in various conversations, Lubetzky, 54 Cal. 3d at

321.

2. Plaintiffs’ Claim for Invasion of Privacy: Cal. Const. Fails

2.1. Legal Background on Standing

“The constitutional [privacy] provision simply does not apply to corporations.” SCC

Acquisitions, Inc. v. Superior Court, 243 Cal. App. 4th 741, 755–56 (2015). Therefore, Plaintiffs’

complaint is proceeding under an “associational standing” theory. FAC ¶¶ 239, 245; Dkt. 124,

Order on Motions to Dismiss & Strike, 43:1–46:10 (Sep. 30, 2016). “[A]n association has standing

to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose;

and (c) neither the claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

But “[a]ssociational standing is reserved for organizations that express the collective views

and protect the collective interests of their members.” Fleck & Assocs., Inc. v. Phoenix, City of, an

Arizona Mun. Corp., 471 F.3d 1100, 1106 (9th Cir. 2006). It “is properly reserved for voluntary

membership organizations—like trade associations or environmental groups—and has no

application to a corporation’s standing to assert the interests of its employees.” Region 8 Forest Serv.

Timber Purchasers Council v. Alcock, 993 F.2d 800, 810 n. 15 (11th Cir. 1993).

8 Ex. 36, Gatter Depo., 55:14–56:1, 61:18–62:16, 75:2–21; Ex. 38, Nucatola Depo., 130:7–11; 144:21–145:19, 235:18–236:6.


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In the employer/employee context, the “third-party standing” test is used. That test requires

that: “(1) the plaintiff seeking to assert the third party’s rights has otherwise suffered an injury-in-

fact, (2) the relationship between the plaintiff and the third party is such that the plaintiff is nearly as

effective a proponent of the third party’s right as the third party itself, and (3) there is some obstacle

to the third party asserting the right.” Id. at 809.9 When this argument was raised previously,

Plaintiffs simply responded that they “could also assert a privacy claim under the third-party standing

doctrine,” without significant explanation and despite having failed to plead it. Dkt. 91, Plaintiffs’

Opposition to Motion to Dismiss, 41 n.30 (May 25, 2016).

2.2. Legal Background on Cal. Const. Art I, § I

A privacy claim under the California Constitution requires a plaintiff to establish [1] the

existence of a legally protected privacy interest, [2] a reasonable expectation of privacy under the

circumstances, and [3] a serious invasion of the plaintiff’s privacy interest. Hill v. NCAA, 7 Cal. 4th

1, 35-37 (1994). Further, [4] “[i]f the claimant establishes all three required elements, the strength

of that privacy interest is balanced against countervailing interests.” Cnty. of L.A. v. L.A. Cnty.

Emp. Relations Comm’n, 56 Cal. 4th 905, 926 (2013).

With respect to [1] above, “under California law there are only two classes of legally

protected privacy interests under the California Constitution: [i] interests in precluding the

dissemination or misuse of sensitive and confidential information (‘informational privacy’); and

[ii] interests in making intimate personal decisions or conducting personal activities without

observation, intrusion, or interference (‘autonomy privacy’).” In re Yahoo Mail Litig., 7 F. Supp. 3d

1016, 1039 (N.D. Cal. 2014). Plaintiffs rely on [i], asserting that “the nature and subject matter of

the conferences were highly sensitive,” and there is a legally protected interest “in precluding the

dissemination of misuse of sensitive and confidential information.” Dkt. 91, Plaintiffs’ Opposition

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); Novell, Inc. v. Gribben, 168 F.3d 500 (9th Cir. 1999) (citing third-party standing cases, not associational 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 Parenthood entity to bring case on behalf of its employees using associational standing test).


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to Motion to Dismiss, 46:19–22 (May 25, 2016) (quoting FAC ¶ 246; Cnty. of L.A. v. L.A. Cnty.

Emp. Relations Comm’n., 56 Cal. 4th 905, 927 (2013)).

“Informational privacy” concerns “personal information.” Hill, 7 Cal. 4th at 81–82. “A

particular class of information is private when well-established social norms recognize the need to

maximize individual control over its dissemination and use to prevent unjustified embarrassment or

indignity.” Id. at 35. “The California Constitution sets a ‘high bar’ for establishing an invasion of

privacy claim.” In re Yahoo Mail Litig., 7 F. Supp. 3d at 1038. Examples include medical records

which would contain “extremely sensitive” information, such as “sexually transmitted disease,

possible HIV status, and sexual orientation.” Los Angeles Gay & Lesbian Ctr. v. Superior Court, 194

Cal. App. 4th 288, 308 (2011); see also Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927, 933 (C.D.

Cal. 2015) (similar); Manela v. Superior Court, 177 Cal. App. 4th 1139, 1150 (2009) (privacy interest

in generic medical records outweighed by other interests). “[C]ourts make their decisions regarding

whether a plaintiff has stated a legally protectable privacy interest based on the nature of the

information at issue.” In re Yahoo Mail Litig., 7 F. Supp. 3d at 1041.

With respect to [2], to establish a reasonable expectation of privacy, the forum in which the

information is disclosed must be private. See Vo v. City of Garden Grove, 115 Cal. App. 4th 425, 448

(2004) (“[A]ctivities on the premises of a public retail establishment [are not confidential]. . . . Nor

can it reasonably be understood that the observation of persons using a computer in a CyberCafe

involves intrusion either on the making of an intimate personal decision. . . . Plaintiffs do not explain

why observation by a video camera intrudes on privacy any more than observation by employees or

other patrons.”); see also Gonzales v. Uber Techs., Inc., 305 F. Supp. 3d 1078, 1092 (N.D. Cal. 2018)

(“Plaintiff consented to the sharing of his geolocation data with perfect strangers (Lyft riders); thus,

under the circumstances he did not have a reasonable expectation of privacy in such information.”).

For similar reasons, “information already publicly available is not protected by the right to

privacy under the California Constitution.” San Francisco Apartment Ass’n v. City & Cty. of San

Francisco, 881 F.3d 1169, 1178 (9th Cir. 2018). Private financial information is protected. See

Overstock.com, Inc. v. Goldman Sachs Grp., Inc., 231 Cal. App. 4th 471, 503 (2014). But the salaries

and pension benefits of public employees is not protected—because it is public. Int’l Fed’n of Prof’l


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& Tech. Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 338 (2007), Sonoma Cty.

Employees’ Ret. Assn. v. Superior Court, 198 Cal. App. 4th 986, 1005–06 (2011). More

fundamentally, “[a] person’s physical features are not confidential.” Vo, 115 Cal. App. 4th at 448.

With respect to [4], “[a]mong the legitimate competing societal interests is the public interest

in exposing and prosecuting serious crime.” Baughman v. State of California, 38 Cal. App. 4th 182,

190 (1995). Any other serious interest is not infringing on the rights of the free press. Ass’n for Los

Angeles Deputy Sheriffs v. Los Angeles Times Commc’ns LLC, 239 Cal. App. 4th 808, 822 (2015).

2.3. The Cal. Constitution Claims Fail

As stated above, for Plaintiffs’ California Constitution claim, there must be [1] extremely

private content; [2] a reasonable expectation of privacy under the circumstances, [3] a serious

invasion of the interest in the private content, and [4] these factors must be balanced against other

interests, such as prosecuting crime and the newsworthiness of the information.

Preliminarily, Plaintiffs cannot assert a claim for violation of the California Constitution

with respect to conduct that occurred outside of California. As explained in co-defendant Lopez’s

motion for summary judgment, the various defendants’ “tortious” visit to offices in Colorado and

Texas, and attendance at conferences in Florida, Maryland, and the District of Columbia must be

analyzed under the tort law of those jurisdictions. See Fleury v. Harper & Row, Publishers, Inc., 698

F.2d 1022, 1025 (9th Cir. 1983); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 152.

As a result of [1] above, there is no meaningful argument Plaintiffs can make that any of their

individual staff have a claim for violation of the California Constitution. None of the videos

identified by Plaintiffs contain the highly sensitive information required to meet the “high bar” at

issue. See Ex. 35, Manually Filed Hard Drive. They are not about sexual relations, medical records,

HIV status, or banking information. Indeed, the mere fact that the information was shared as part of

business discussions—even business discussions with pro-abortion individuals—means that it is not

the type of information which is protected. The California Constitution does not permit of a

“relative” privacy like tortious intrusion does, see Lopez’s Motion for Summary Judgment: it only

protects highly sensitive information like HIV status.

Plaintiffs also cannot establish standing, either under an associational standing theory or a


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third-party standing theory. With respect to associational standing—which does not apply in this

context anyway—the individual participation of the associational members is required. The

“individual participation” factor is not met if an “individual inquiry” is required which would lead

to “needing to consult with individual members.” FOAGLA, Inc. v. 7-Eleven, Inc., No. EDCV 14-

1432 JGB (SPx), 2014 WL 12601505, at *4 (C.D. Cal. Dec. 18, 2014) (collecting cases); NorCal Tea

Party Patriots v. I.R.S., No. 1:13-CV-341, 2014 WL 3547369, at *4 (S.D. Ohio July 17, 2014) (no

associational standing in privacy case). Associational standing might work in the situation where the

privacy jurisprudence protects generic privacy interests: such as the general right to exclude

regardless of the content of the information (similar to Fourth Amendment jurisprudence); or where

the content is per se private such as medical records. See Nat’l Ass’n of Letter Carriers, AFL-CIO v.

U.S. Postal Serv., 604 F. Supp. 2d 665, 676 (S.D.N.Y. 2009) (issue whether seizure of medical

records violate privacy under Fourth Amendment standard). As a result, Plaintiffs pleaded that

they had a “reasonable expectation that the conversations and interactions” at various conferences

and in various business meetings “would be private”—system wide. FAC ¶¶ 246–47.

But that is not how the privacy provision in the California Constitution works. “It is well

settled that the right of privacy [under the California Constitution] is purely a personal one; it

cannot be asserted by anyone other than the person whose privacy has been invaded, that is,

plaintiff must plead and prove that his privacy has been invaded.” Ass’n for L.A. Deputy Sheriffs v.

L.A. Times Commc’ns, LLC, 239 Cal. App. 4th 808, 821 (2015) (applying Cal. Const. in

associational standing context) (original italics). Parties cannot merely state that everybody expects

their emails to be private, and so an email provider should not be copying them all. In re Yahoo Mail

Litig., 7 F. Supp. 3d at 1040 (“To the extent Plaintiffs claim a legally protected privacy interest and

reasonable expectation of privacy in email generally based on the mere fact that Yahoo intercepted

and distributed their emails, regardless of the specific content in the emails, Plaintiffs’ claim fails as

a matter of law.”) (original italics). For the same reason, Plaintiffs cannot merely state that

everybody in the abortion industry expects conversations with other individuals in that same

industry to be treated as private (due to the potential for public shaming), and so they should never

be recorded. This theory “fails as a matter of law” and therefore cannot serve as a basis for


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associational standing. See id.

With respect to third-party standing—which does apply but which is not pleaded—Plaintiffs

have no standing because there is no obstacle or hindrance to the staff members themselves

bringing suit. Employees are perfectly adequately equipped to protect their own interests. Viceroy

Gold Corp. v. Aubry, 75 F.3d 482, 489 (9th Cir. 1996) (finding no hindrance); Int’l Union v. Dana

Corp., 278 F.3d 548, 560 n.13 (6th Cir. 2002) (same); United States v. Mun. Bond & Collection Servs.,

Inc., 810 F.2d 46, 49 (3d Cir. 1987) (same).

Further, the hindrances at issue must be very severe, such as where there is simply no third

party around to assert his own interests. See Lake v. Reno, 226 F.3d 141, 147 (2d Cir. 2000), vacated

on other grounds 533 U.S. 913 (2001) (third party passed away and so “was irrevocably and finally

hindered from vindicating his own rights”); Illinois Citizens Comm. for Broad. v. F.C.C., 515 F.2d

397, 402 (D.C. Cir. 1974) (radio station could assert the public’s constitutional right to receive

information). Simple difficulty in asserting the rights is not a sufficient hindrance. McCollum v.

California Dep’t of Corr. & Rehab., 647 F.3d 870, 879 (9th Cir. 2011) (prisoners had ability to

challenge program); Kyung Park v. Holder, 572 F.3d 619, 625 (9th Cir. 2009) (foreign domicile not

obstacle to asserting rights). And the mere fact that the party who would assert the right might be

disfavored, or advancing an unpopular view, is not a sufficient hindrance. See MD II Entm’t, Inc. v.

City of Dallas, Tex., 28 F.3d 492, 497 (5th Cir. 1994) (no genuine obstacle to nude dancers bringing

suit themselves); Ferris v. Santa Clara Cty., 891 F.2d 715, 717 n.3 (9th Cir. 1989) (no standing to

assert rights of minors to engage in criminalized sexual activity).10

Finally, factor [4] above—regarding how the newsworthiness of the information tempers the

offensiveness of the conduct—also defeats the claim. Throughout this litigation, Plaintiffs have

repeatedly seized on the Court’s statement in the related case that “[t]he products of [the Human

Capital] Project—achieved in large part from the infiltration—thus far have not been pieces of

journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect

10 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 Daleiden, W.D. Wash., Case No. 2:16-cv-01212.


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to the NAF materials) of criminal misconduct.” Nat’l Abortion Fed’n v. Ctr. for Med. Progress, No.

15-CV-03522-WHO, 2016 WL 454082, at *24 (N.D. Cal. Feb. 5, 2016).

But the defense can point to similarly impressive judicial rulings: “[B]ased on the videos, []

the Provider Plaintiffs at a minimum violated federal standards regarding fetal tissue research and

standards of medical ethics by allowing doctors to alter abortion procedures to retrieve tissue for

research purposes or allowing the researchers themselves to perform the procedures.” Planned

Parenthood of Greater Texas Family Planning & Preventative Health Servs., Inc v. Smith, 913 F.3d 551,

568 (5th Cir. 2019);11 see also id. at 559 n. 6 (dismissing PPGC’s “misleading” allegation because

“the record reflects that OIG had submitted a report from a forensic firm concluding that the video

was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission

or addition in the video footage.”).

Proceeding in this manner, however, would simply be unconstitutional. Newsworthiness is

not “governed by the tastes or limited interests of an individual judge or juror; a publication is

newsworthy if some reasonable members of the community could entertain a legitimate interest in

it.” Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 225 (1998). In other words, so long as

reasonable people are actually interested (as opposed to the alleged public interest being a mere

excuse to defame someone), “the trial court was . . . mandated[] in granting summary judgment.”

Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040, 1050 (Ct. App. 1984).

Here, the simple fact is that Defendant Daleiden’s investigation into, and publication of

information about, undisputed12 criminal wrongdoing by the nation’s largest abortion provider is per

se newsworthy. It is irrelevant that some segments of the population may have found Defendant

Daleiden’s investigation distasteful; or that some may find the highlight footage sensational. What

matters is that the public took an immediate and impressive interest in the story. Therefore,

Plaintiffs’ Cal. Const. invasion of privacy claim fails. See Daleiden Decl., ¶¶ 57–98.

11 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). 12 See Defendant Lopez’s Note on the Argument.


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3. Plaintiffs’ Claim for Trespass at the 2014 NAF Conference Fails

The California Penal Code provides that it is illegal for “[a]ny person [to] trespass[] on

property for the purpose of committing any act, or attempting to commit any act, in violation of

Section [] 632.” Cal. Penal Code § 634. “Any person who has been injured by a violation of this

chapter may bring an action against the person who committed the violation for . . . (1) Five thousand

dollars ($5,000). (2) Three times the amount of actual damages, if any, sustained by the plaintiff.”

Cal. Penal Code § 637.2 (2014). Plaintiffs have asserted that, although they did not have any interest

in the property upon which Defendant Daleiden allegedly trespassed, they nevertheless have standing

because another party may have had standing to exclude, and Plaintiffs were injured by the alleged

trespass against that other party. Dkt. 91, Plaintiffs’ Opposition to Motion to Dismiss, 34:14–35:1

(May. 25, 2016). Plaintiffs’ claim is illogical for several reasons.

First, to establish a “possessory interest” required for trespass, parties “must show that [the

trespassees] have the right to exclude others.” United States v. Ellis, 121 F. Supp. 3d 927, 945 (N.D.

Cal. 2015). But Plaintiffs have no knowledge whether NAF had that right: they simply assume as

much. Ex. 53, PPFA Depo., 159:15–160:9. Second, as stated above, Defendant Daleiden neither

violated Cal. Penal Code § 632, nor intended to, and therefore there is no violation of Cal. Penal Code

§ 634. See § 1, supra. Third, Plaintiffs were not injured by the alleged trespass. The only harm flowing

from the alleged trespass would be at most to the possessor of the property, such as the hotel itself.

Any subsequent harm which Plaintiffs could have sustained would not have been proximately caused

by the trespass. See Food Lion I, 964 F. Supp. at 963, aff’d, Food Lion II, 194 F.3d 505, Animal Legal

Def. Fund v. Wasden, 878 F.3d 1184, 1195 n.9 (9th Cir. 2018). Thus, Plaintiffs were not harmed by any

purported trespass, and have no standing to bring a claim for violation of Cal. Penal Code § 634.

Fourth, Plaintiffs’ claim is redundant. Although Plaintiffs’ complaint alleges claims for

violation of § 632 and § 634 separately, this is error. Plaintiffs’ real claim is pursuant to § 637.2.

That section permits a single claim for violation of Cal. Penal Code § 630, et seq., and permits either

a single award of $5,000 or actual damages. Franklin, 2018 WL 5923450, at *7. But publication

damages are unavailable to Plaintiffs under either § 632 and § 634, see Wasden, 878 F.3d at 1195 n.9;

Lieberman, 110 Cal. App. 4th at 167, and so each Plaintiff is limited to a single award of $5,000. In


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that situation, where Plaintiffs would have to prove a violation of § 632 to prove a violation of § 634,

and both violations lead to a single result, the latter is redundant. Summary judgment should be

granted.

4. Plaintiffs’ Claim for Common Law Trespass Fails

For the reasons stated in co-defendant Lopez’s motion for summary judgment, Plaintiffs’

claims for trespass at their various conferences in Florida and the District of Columbia fail because

they did not have a possessory interest in the space assigned to them by various hotels. However, in

addition, all of Plaintiffs’ common law trespass claims fail because Plaintiffs consented to the

various defendants’ entry.

“Trespass to real property occurs when a person enters another’s land without consent.”

Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex. App. 2006); see Gifford v. City of Colorado Springs,

815 P.2d 1008, 1012 (Colo. App. 1991) (“Trespass is an entry upon the real property of another

without the invitation or permission”).

Thus, conversely, a consented entry, such as Defendant Daleiden’s, “will not support an

action in trespass.” Hawthorne v. Fisher, 33 F. Supp. 891, 896 (N.D. Tex. 1940). “[T]o maintain an

action for trespass, it is the plaintiff’s burden to prove that the entry was wrongful, and the plaintiff

must do so by establishing that entry was unauthorized or without its consent.” Envtl. Processing

Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 425 (Tex. 2015); see 7A JOHN W. GRUND, ET AL.,

COLO. PERSONAL INJURY PRACTICE § 29:29 (3D ED. 2018) (“In a trespass action, it is typically

considered part of a plaintiff’s prima facie case to show that the intrusion onto the plaintiff’s

property was without his permission.”).

“Consent is willingness in fact for conduct to occur.” Conlay v. Baylor Coll. of Med., 688 F.

Supp. 2d 586, 592 n.20 (S.D. Tex. 2010) (quoting RESTATEMENT (SECOND) OF TORTS § 892 (AM.

LAW INST. 1979)); see also Dominguez v. Babcock, 727 P.2d 362, 364 (Colo. 1986) (same). But “[i]f the

person consenting to the conduct of another is induced to consent by a substantial mistake concerning

the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake

is known to the other or is induced by the other’s misrepresentation, the consent is not effective for

the unexpected invasion or harm.” Landry’s, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 64 (Tex.


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App. 2018) (quoting RESTATEMENT (SECOND) OF TORTS § 892B).

“The rule . . . is limited to substantial mistakes, known to the actor, concerning the nature

of the invasion or the extent of the harm that is to be expected. If the consent is induced by mistake

concerning other matters, the rule does not apply.” RESTATEMENT (SECOND) OF TORTS § 892B, cmt. g.

This distinction between a “substantial mistake” regarding “the nature of the invasion of his

interests” is described “sometimes by saying that the mistake goes merely to the ‘inducement’ of

the consent, rather than to the essence of what is consented to; sometimes by saying that it goes

merely to a ‘collateral’ matter.” Id.

Plaintiffs here pleaded that “Defendants fraudulently obtained PPGC, PPCFC, and

PPRM’s conditional consent to enter their facilities by misrepresenting their identities and purpose.

PPGC and PPCFC conditioned their consent on Defendants’ promise to keep all information

confidential. PPGC and PPRM both conditioned their consent on Defendants’ false representations

that they were representatives of a fetal tissue procurement company and that they sought entry to

discuss fetal tissue donation.” FAC ¶ 193.

With respect to the former “condition,” the PPGC non-disclosure agreement, PPGC’s

remedy is for breach of contract—not trespass. “[A] person who obtained possession to land

through a fraudulent contract cannot be prosecuted for trespass.” Lilly Indus., Inc. v. Health-Chem

Corp., 974 F. Supp. 702, 709 (S.D. Ind. 1997) (citing Howe v. State, 10 Ind. 492, 492–93 (1858)).

With respect to both “conditions,”13 the issue is whether the fact that Defendant Daleiden

was a journalist was a “substantial mistake” which would vitiate consent, or whether it was simply

a “collateral” matter. It was the latter.

13 Plaintiffs cannot merely state that had they known Defendant Daleiden was a journalist, they 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 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 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) (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.


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In Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the Ninth Circuit struck

down a statute which criminalized “entry into an agricultural production facility by . . . trespass.” Id.

at 1194. In so doing, the Ninth Circuit analyzed whether the statute criminalized conduct protected by

the First Amendment. The Ninth Circuit then struck it down because it would cover “investigative

journalists” and “lying to gain entry merely allows the speaker to cross the threshold of another’s

property, including property that is generally open to the public.” Id. at 1195.14 That, in itself, does

not cause legally relevant harm. See id. at 1195 n.9 (“At issue here is the speech to gain entry to the

facility, not the journalistic creation or speculative harm that may arise after entry.”).

Similarly here, misrepresentations by the Defendant investigative journalists to gain entry

merely allowed them to cross the threshold of Plaintiffs’ property. Wasden, 878 F.3d at 1194-95. See

also Desnick v. Am. Broad. Companies, Inc., 44 F.3d 1345, 1352 (7th Cir. 1995) (“The answer can have

nothing to do with fraud; there is fraud in all the cases. It has to do with the interest that the torts in

question, battery and trespass, protect.”); Am. Transmission, Inc. v. Channel 7 of Detroit, Inc., 239

Mich. App. 695, 708–09 (2000) (“[T]he trial court properly granted summary disposition of

plaintiffs’ trespass claim. Although Stern misrepresented her purpose, plaintiffs’ consent was still

valid because she did not invade any of the specific interests relating to the peaceable possession of

land that the tort of trespass seeks to protect.”).

Plaintiffs cannot meet their burden to establish lack of consent; the Court should grant

summary judgment.

14 Places “open to the public” are those to which a person is invited to enter even after engaging in 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 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 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 welcomed, to do. . . . The testers did not enter into any restricted areas of the office, such as an employees’ lounge.”).


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5. Plaintiffs’ Claims for Fraud and Conspiracy to Defraud Fail

As the Ninth Circuit has boldly announced, “a false statement [by an investigator] made in

order to access a[] . . . facility—cannot on its face be characterized as made to effect a fraud.”

Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1194 (9th Cir. 2018). This is because

“[m]isrepresentation, even maliciously committed, does not support a cause of action unless the

plaintiff suffered consequential damages.” Orcilla v. Big Sur, Inc., 244 Cal. App. 4th 982, 1008

(2016). “[W]ithout actual damages, there is no fraud.” Kurinij v. Hanna & Morton, 55 Cal. App. 4th

853, 866 (1997). There is a First Amendment right to lie, and therefore, “[u]nless the plaintiff can

show an actual pecuniary loss, he can recover nothing. Fraud without actual damage is not

actionable.” Zeliff v. Sabatino, 15 N.J. 70, 77 (1954) (quoting HARPER ON TORTS § 226 (1933)).

As stated in Defendant CMP’s motion for summary judgment, the only harm which

Plaintiffs suffered was the harm of having their criminal conduct unearthed and publicized.

Plaintiffs’ desire to run amok over the First Amendment, or pretend it does not apply to them, must

fail. Cf. Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 520 (Ct. App. 1986) (“This type

of activity, at least, is within the news gathering activities which are protected by the First

Amendment.”). Defendants do not concede either materiality or reliance—and do not believe

Plaintiffs can establish those elements in the face of the First Amendment—but those elements

need not be discussed now because Plaintiffs’ claims fail for lack of damages.

C O N C L U S I O N

For the foregoing reasons, this Court should grant the present motion for summary

judgment, entering judgment in favor of Defendants’ on Plaintiffs’ claims for Violation of Cal. Penal

Code § 632, Invasion of Privacy: Cal. Const., Violation of Cal. Penal Code § 634, common-law

trespass in Colorado and Texas.


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Respectfully submitted, May 22, 2019, /s/ Charles S. LiMandri Charles S. LiMandri (CA Bar No. 110841) Paul M. Jonna (CA Bar No. 265389) Jeffrey M. Trissell (CA Bar No. 292480) B. Dean Wilson (CA Bar No. 305844) FREEDOM OF CONSCIENCE DEFENSE FUND P.O. Box 9520 Rancho Santa Fe, CA 92067 Tel: (858) 759-9948 Facsimile: (858) 759-9938 [email protected] [email protected] [email protected] Denise M. Harle (CA Bar No. 275561) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd., NE Suite D1100 Lawrenceville, GA 30043 Tel: (770) 339-0774 [email protected] Harmeet K. Dhillon (CA Bar No. 207873) Gregory R. Michael (CA Bar No. 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 415-433-1700 415-520-6593 (fax) [email protected] Attorneys for Defendant David Daleiden

/s/ Thomas Brejcha Thomas Brejcha, pro hac vice Peter Breen, pro hac vice THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250 Chicago, IL 60606 Tel: (312) 782-1680 Facsimile: (312) 782-1887 [email protected] [email protected] Matthew F. Heffron, pro hac vice THOMAS MORE SOCIETY 10506 Burt Circle, Suite 110 501 Scoular Building Omaha, NE 68114 Tel: (312) 782-1680 [email protected] Attorneys for Defendant David Daleiden Attestation Pursuant to Civ. L.R. 5.1(i)(3)

As the filer of this document, I attest that concurrence in the filing was obtained from the other signatories.

/s/ Charles S. LiMandri Charles S. LiMandri Counsel for Defendant Daleiden


Freedom of Conscience Defense Fund · Plaintiffs’ Claim for Violation of Cal. Penal Code § 632...

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