*1 Aug. Third 1993.] C011874. Dist. [Nо. Plaintiff, CENTER, HEALTH Cross-defendant
FEMINIST WOMEN’S Respondent, al., Defendants, Appellants. BLYTHE Cross-complainants DON et [Opinion partial publication.**] certified for 976.1, Court, publica **Pursuant is certified for opinion California Rules of rules this exception parts tion with the I and II. *7 Counsel Defendants, Imeld, Millen Llewellyn
Michael D. Mike and David L. for Cross-complainants and Appellants. Merin,
Carroll, Williams, Burdick & Dickstein & McDonough, Cathleen A. Plaintiff, and Mark E. Merin Fred J. Hiestand Cross-defendant Respondent.
Opinion SCOTLAND, In this from a a appeal judgment granting permanent J. time, on activities of injunction imposing place manner restrictions clinic, and from an antiabortion demonstrators Sacramento plaintiff’s awarding fees to to Code of Civil Procedure plaintiff pursuant order 1021.5, defendants’ to the reject challenges propriety section we various finding we evidence injunction. As shall scope explain, supports harm that defendants’ threat of posed significant plaintiffs conduct if infringed would continue patients, upon patients’ privacy, in front of enjoined designation of a zone” permanently; “speech clinic lot was based driveway and the plaintiffs building’s private parking *8 not the upon content of defendants’ but conduct of defendants speech upon which was the First the Con- unprotected by Amendment to United States Constitution; I, stitution and article section California was tailored interest injunction narrowly protect patients’ privacy while providing defendants with ample to communicate opportunity antiabortion message.1 John
We also fee defendants except order as to all uphold attorney supports Walker and As we the record Operation explain, Rescue. shall trial financial interest court’s did have a sufficient finding that plaintiff’s this fee award that litigation an preclude attorney motivation in primary public further seeking injunction interest of ensur- protecting patients’ by its constitutional to abortion rights that their In ing access to abortion was not restricted unlawfully. services addition, conclude, follow, we attorney reasons which that the fee award will not to chill the operate to freedom of rights speech constitutional because even the naive most have person would known defendants’ conduct access to the —obstructing clinic and assault and acts of engaging harassment to prevent women who had disinterest in defendants’ expressed views from exercising the constitutional to abortion—was not protected by I, the First Amendment to the United States Constitution or article Constitution, section of the California and because the fee attorney order does not prevent defendants from continuing to demonstrate and exercise their freedom of within the lawful limits set forth in injunction. shall
We reverse the fee attorney order as to defaulting defendants Walker and Operation Rescue because did plaintiffs complaint not demand such attorney fees Code Civil Procedure section 580 an award precludes against a defaulting defendant which relief exceeds the demanded in the complaint.
In the unpublished our portions of we opinion, defendants’ conten- reject tions that tiie trial court erred on the ruling admissibility of cеrtain evidence and that the court’s statement of decision is inadequate. joint notice, 1A notice of appeal was filed all defendants. defendants John Walker Operation Rescue appeal only awarding from the remaining order fees. The defendants appeal from judgment permanent both the granting injunction and the order awarding attorney fees. Because Operation appeal Walker and Rescue do not from judgment granting the permanent injunction, any we need not address contentions in their relating briefs to that judgment. *9 Background
Facts and Procedural Viewed in the most light (Estate favorable to the judgment Leslie 37 Cal.3d 133]), the facts are 689 P.2d as follows:2 in
Plaintiff is a clinics nonprofit four medical corporation operating California, (here- Northern in one J Street Sacramento including located on clinic) after the The clinic which is the in case. subject injunction of the this care, is open six a week and health birth control days provides gynecological services, test- transmitted disease pregnancy testing sexually and screening, and of a ing The the second floor screening, abortions. clinic is on in medical which also are building several doctors’ offices and a pharmacy located. front entrance of the running onto a sidewalk building opens to J Street the entire from parallel along extending of the length building the front of the to J building Street. The back entrance onto a opens 40-space parking lot to which there is I in access from Street. Signs posted parking lot state that it is reserved for thе and their use tenants of the building customers and that will trespassers be under Penal Code section prosecuted 602. Lewis, Reali,
Defendants are Jay Baggett, Don Theresa Blythe, Murray Stoos, John (hereafter John Walker and Rescue we shall refer Operation record, these parties defendants). as collectively According to the Operation Rescue is a national antiabortion group whose members are to risk willing arrest in an effort to blockade abortion clinics and make it impossible enter patients to medical facilities where abortions performed. are There is no evidence that of the any individual defendants are members of or affiliated with Operation Rescue.
The clinic in June opened 1987. Defendants commenced antiabortion demonstrations there early 1988. one Every Saturday, or more of the defendants and others would arrive at the clinic and use various techniques in an effort to counsel patients and or them persuade from stop submitting abortions. These techniques included picketing front of the medical lot, building parking distributing antiabortion literature both inside and outside medical building, or blocking entrance to impeding lot, and the building parking hitting the hoods of entering cars the parking lot, blocking arriving doors of patients’ vehicles lot so that parking clinic, had difficulty getting out and patients entering the following patients give order to them literature if even the patients indicated were not they 2We summarize the facts in present they tense as existed at the time of the trial court hearings in this action. interested, clinic, into the stepping paths patients they as approached murder, babies, “murder, “kill” their urging patients murder” shouting cameras at them. patients, pointing *10 patients trying The antiabortion for demonstrations have caused problems noted, demonstrators to enter the clinic. As other things previously among have and building have blocked the medical entrance to the patients to from patients refused leave. clinic has received calls telephone the When nearby enter clinic. phone booths were to complaining they unable the clinic staff into offered to and those patients went out to escort help the resched- building, sometimes Other patients patients could be found. uled the clinic appointments to avoid the and called demonstrations times, escort into assistance request assistance the Several building. police has been entrance necessary building lot and stop blocking parking and other activities of the demonstrators. district office attorney’s After the declined to prosecute defendants who had for been arrested trespass, parking lot “became a get sort battleground,” patients and were unable to out of their or cars enter the building being without to the conduct subjected summarized above.
The noise made by picketing demonstrators and the and confrontations other activities initiated and by defendants at the have and others clinic upset instances, agitated clinic In some patients. have patients been reduced to tears. This level of heightened anxiety has that abortion required patients receive greater amounts of and lengthened medication has the time necessary to perform abortion procedures, thereby increasing the risks to patients. members, Heightened anxiety of staff including doctors performing abortions, concentration, has impaired their further increasing risks patients. 6, 1989,
On January plaintiff obtained a temporary order restraining time, imposing and manner place restrictions on the antiabortion activities of servants, defendants as well as their agents, and employees representatives. 6, 1989, On March the court granted plaintiff’s motion preliminary injunction.
After the issued, temporary order restraining and preliminary injunction continued, cameras, antiabortion activities at the clinic the use including into bumping aside pushing “escorts” hired by the clinic to assist patients entering areas, the building, following restricted patients into blocking lot, cars enter attempting to parking persisting offering literature refused by patients, blocking passage on sidewalk front of the medical building, and in restricted picketing areas.
Defendants John Walker and Rescue did not Operation and a appear, default judgment was entered against them. Plaintiff’s for a application defendants, permanent injunction was tried against judg- remaining ment was entered plaintiffs favor for a permanent injunction prohibiting (1) any activity extending within a free zone” defined as a “speech rectangle from the on J front of the medical feet of the curb to three short building door, (2) ingress Street and 20 feеt blocking on either side of the front medical egress of clinic in front of the patients staff on the sidewalk (3) interferes with building, or noise which yelling otherwise loud producing clinic visitors or operations, clinic patients, or photographing videotaping staff, clinic, (6) visiting license of vehicles recording plate numbers lot, (7) with automobiles entering interfering medical building parking *11 lot, entering (8) any or others to do of leaving parking inducing and above. trial,
Following fees plaintiff moved for an award of pursuant $99,106.98 Code Civil Procedure section 1021.5. The court awarded all against defendants jointly Walker and severally, including Operation Rescue.
Discussion I, II* III Defendants contend their conduct was not sufficiently egregious to warrant of a entry permanent injunction. relied They argue cases upon court, in the trial (1942) Steiner v. Beach Long Local No. 128 19 Restaurants, Cal.2d 676 P.2d and M Inc. Local [123 20] v. San Francisco Joint Culinary (1981) Exec. Bd. 124 etc. Union Cal.App.3d 690], where Cal.Rptr. injunctive relief upheld, involved threats violence, neither of which is here. The present contention has no merit.
“Injunctive (Merced relief rests in the sound discretion of the court Mining Co. v. Fremont 327-328), 7 Cal. to be exercised accordance with well settled and in equitable of all the facts principles light and circumstances in the ‘In case. an case the trial court “has equity broad can, would, and flexible discretionary powers, undoubtedly deny injunctive relief (Wholesale where such relief would be T. inequitable”.’ footnote, ante,
*See page 1543. (1938) Dealers v. National etc. Co. Cal.2d P.2d 486].)” (Palo A.L.R. Yellow County Alto-Menlо Park Cab Co. Santa Clara Transit Dist. 65 Cal.App.3d
Civil a injunction prevent Code section 3422 authorizes “to permanent breach of an 1. Where obligation favor of the existing applicant: [ft relief; 2. Where it pecuniary compensation would not afford adequate [ft would which be difficult to extremely compensation ascertain amount relief; necessary would afford Where the restraint is adequate 3. [ft or, obligation Where the prevent judicial 4. multiplicity proceedings; [ft arises from trust.” Nonethe
Violence or even the is unnecessary. threat violence less, viewed most evidence this light favorable to the judgment, matter defend significant establishes that a level of harm is threatened by director, Steir, ants’ conduct. medical is a Plaintiff’s Dr. testified an abortion procedure requiring a deal of Because it done with great concentration. anesthesia, local procedure cooperation patient. requires staff, Increased anxiety as well as patients, brought on antiabortion activities increases the risks to the Dr. Steir also patient. problems described which could arise where a patient involved a two-day fails to procedure *12 return Moreover, to the clinic on the second there is the fact day.3 simple that potential clinic patients be intimidated from the may clinic’s seeking services and of thereby rights. their deprived
Defendants also contend a permanent injunction was be- inappropriate cause no evidence presented was suggesting the conduct the supporting temporary and restraining order preliminary injunction would be resumed if claim, not permanently enjoined. of support this defendants to the point lack of evidence of prohibited conduct at the clinic for more than a year before trial.
Because injunction is an the should extraordinary remedy, remedy not be exercised it unless is the acts will reasonably probable complained recur. “Injunctive is not as power used punishment past acts is ordered if them there against only is evidence will recur. . . . they probably A equity court of will not afford injunction an the future that prevent which in faith has been good discontinued the any absence of evidence are (Mallon the acts to be in the likely repeated City Long future.” 423], Beach 164 Cal.App.2d omitted.) P.2d citations performed 3An 2-day abortion after weeks of pregnancy procedure. is a the first day On a “Laminara” is inserted to dilate the day operation performed. cervix. The next actual Steir, According Dr. life-threatening complications if the patient can result does not return day. after the first Defendants claim the only evidence of their current presented activities and intentions testimony Jay Baggett. Baggett indicated that, if not prohibited by he would like injunction, to resume following clinic, patients they as approach offering literature repeatedly despite being ignored, telling are choice. patients they making wrong Defendants this if argue does not establish what would do testimony Baggett further at the enjoined. They argue ceased activities Baggett actually clinic because of escort conduct. of whether what he would do
Regardless established Baggett’s testimony if it was permitted, prohibited reasonable for the trial court to conclude this subject conduct would resume enjoined. unless permanently divisive, is so commit dispute intensely and the so antagonists passionately ted to their that activists respective positions, it is not reasonable to expect on either side of the would convictions or cease controversy give their up others. “Whether is one of attempts sway legal abortions should be hotly (Portland most contested issues Ctr. day.” of our Fern. Women’sH. (9th 1988) v. Advocates Cir. 859 F.2d The nature of the for Life involved, issue plus nature of defendants’ persistent prolonged activities at the clinic before issuance of the temporary restraining order preliminary injunction, indicate such conduct was discontinued at least part because of the legal with a court order is not prohibition. Compliance discontinuance voluntary conduct. prohibited (Phipps v. Saddleback Val ley School Dist. 1118-1119 Cal.App.3d Unified if Even antiabortion activities were in part discontinued because of conduct, escort this would not that a suggest permanent injunction is inap propriate. Escorts were not hired clinic until after the commencement *13 of antiabortion activities. Their function was precise patients to assist the avoiding conduct of the harassing demonstrators and to monitor compli ance with the temporary restraining order and The preliminary injunction. decision whether to issue a turn permanent injunction should not on the continuation of such efforts the self-help by plaintiff.
IV Defendants’ is to the primary challenge breadth of the injunction. They contend that free speech activities cannot be excluded from the lot or parking sidewalk in of front the medical building. further contend that use of a They free speech zone without injunction restrictions on escort conduct makes the content specific leaves them without a reasonable alternative for com- municating with clinic patients.
1557 We first lot address defendants’ exclusion from the lot. This parking of size is modest and is for use of the medical posted only by tenants their building and clients. I, article
The First Amendment to United States Constitution 2 free speech. section of California of Constitution protect free courts of this state have the exercise of repeatedly protected taken on the as well which has rights places as on public private property attributes public of property. 97, 353],
In
(1967)
In re
434 P.2d
court held that union cannot be excluded from a picketers sidewalk private leading to a “large (Id., at ‘super-market-type’ grocery store.” pp. 876-877.) store, Due large to a lot parking surrounding the other only available forum was the public sidewalk between 150 and feet away from the store. The court explained: a business establishment “[W]hen invites the public generally to patronize its store and in doing so traverse a sidewalk opened for access fact public private of ownership the sidewalk does not operate to strip the members public rights exercise First Amendment on the or privileges sidewalk at near the to the place entry (Id., establishment.” p.at Despite United subsequent States Court which Supreme decisions have taken a more restricted view First Amendment rights on private property (see Lloyd Corp. v. Tanner U.S. L.Ed.2d 92 S.Ct. 2219]; Hudgens v. NLRB U.S. 507 L.Ed.2d 96 S.Ct. 1029]), I, the California Court held Supreme has virtue of article section *14 2 the California Constitution free activities be speech cannot prohib ited a large private (Robins mall Pruneyard v. shopping Shopping Center (1979) 23 Cal.3d 341]). 899 592 P.2d According to the Cal.Rptr. [153 court, Robins such malls have central supplanted business districts as the However, essential public 5.) forum (Id., of a at fn. community. p. so the holding, court (id., the size mall at emphasized pp. 910-911), of the “ and cautioned: ‘It bears that we do not have under repeated emphasis or consideration or of an individual homeowner property privacy rights ” (Id., 910.) of a modest retail establishment.’ at proprietor p. The retail large case does not involve either a mall or a present shopping clinic, In a only establishment. addition the medical houses building to rear of few medical offices and a The lot pharmacy. parking The front building is restricted to tenants and their clients and visitors. is less than 15 feet from the the street. building curb of 140], the Shawley (1991) In Cal.Rptr. Allred v. Cal.App.3d 14,000- court a lot of a rejected claim abortion that the protestors parking building The square-foot office with 10 tenants is a forum. building public clients, served mainly prearranged community, was not fully open members, did not services as would essential to all such provide community (Id., a mall or Parenthood v. large grocery store. Planned p. 427], Wilson where the court Cal.App.3d conclusion, reached the follows: same the clinic location was described as “The Medical Center’s six per tenants offer exclusively professional sonal with services to clientele. It is for use individuals specific only by business such cli specific purposes, as clients and employees, prospective ents of the tenants. Tlie small off-street lot is a parking designed provide convenient for direct with Medical place park those business having Center tenants. Each for ‘tenants’ and parking spot is labeled use ‘patients,’ and there is no Unlike a space public general. large parking mall shopping or forums like streets or historically recognized public parks, sidewalks, public the Medical Center in way no has attributes of acquired (Id., a forum.” public 1671-1672.) at pp.
Defendants contend these cases are
neither in-
distinguishable because
However,
volved
facility
a
a
even
housing
pharmacy
to the
open
public.
though
pharmacy is
to the
we
not view this fact
open
general public,
do
“
as
the basic nature
changing
of the medical
as
‘a modest retail
building
”
Center,
(Robins
establishment’
v. Pruneyard Shopping
supra,
The injunction also antiabortion activities within prohibits zone,” “speech of the sidewalk encompassing large portion front of *15 streets, the medical Such building.4 areas as sidewalks and parks historically have been viewed as forums” where free “quintessential public (Perry cannot speech prohibited. Perry (1983) be Ed. Assn. v. Local Ed. Assn. 37, 794, 804, 948]; U.S. L.Ed.2d 103 S.Ct. Chico Feminist (1989) Women’s Scully Health Center v. 208 Cal.App.3d However, time, reasonable and manner restrictions place neutral, may (1) be where are imposed they (2) content are tailored narrowly interests, to serve significant governmental (3) alternatives afford ample (Ibid.) for communication. forum,
Assuming designated the area public free zone is a speech we find the foregoing requirements The court satisfied this instance. trial indicated the locational restriction on on activity defendants’ based involved, i.e., content of their on the speech but conduct the obstruction harassment, of ingress egress physical risk blocking and on the of harm the cliniс’s This patients. is supported by substantial evidence.
A neutral, restriction activities against within a is given area content as it makes no reference to the (Accord, issues or viewpoints raised. Portland Inc., Fern. H. 686; Women’s Ctr. v. Life, Advocates supra, 859 F.2d at p. Bering 925]; Share 106 Wn.2d P.2d see but (E.D.Mich. Thomason v. Jemigan 1991) 1201.) 770 F.Supp. Two are interests served exclusion from speech free zone: clinic, the property rights of the and the of privacy rights clinic patients. latter, I, Regarding the “[a]rticle section California Constitution expressly makes the pursuit and an obtaining of ‘inalienable privacy right.’
The state right of protects privacy information about a citizen’s partic ipation a medical procedure, including (Chico abortion.” Feminist Wom en’s Health Center v. Scully, supra, 208 Cal.App.3d p.
The presence of antiabortion activities directly front the clinic entrance can have a coercive effect on both patients providers. Patients may be forced to seek assistance or elsewhere forgo alto procedure while gether, providers be may forced to discontinue abortion services because continued harassment or from pressure building owners. either event, the ability of a woman to effectuate her abortion decision be would compromised violation of her rights. 4The trial expressly court excluded from free zone a strip three-foot wide adjacent i.e., along Street, to the curb the side J might what be considered “sidewalk”
parallel (See 2113; front of the clinic. Webster’s Third New Diet. Intern. Diet, Random House English Language (1966) p. 1324 defined generally sidewalk [a as a along walk the side of a road street].) or *16 protect patients’ a free zone also is tailored to speech narrowly
Use of A from the front of the building. interest. Defendants are not barred privacy traffic, curb, width for foot is available three-foot near the a sufficient strip clinic the front would be from Any patient approaching use. “While or within a few feet of defendants. go directly past to either required zone, we with narrower free goal court could achieve its a possibly H. (Portland Fern. Women’s a few feet.” decline to entertain over quibbling Life, supra, 859 F.2d at p. Ctr. v. Advocatesfor injunction. are under preserved alternatives for communication Ample As previously location. Defendants have not been exiled to a nonaccessible indicated, where must areas the front of the clinic pass patients approaching through rear of the clinic are Those permitted. approaching defendants entrance, are also where defendants lot must lot parking pass parking view of signs plain Defendants are allowed to protest carry permitted. distributing from those or within the clinic and are not entering precluded merely The restriction their materials to them. anyone willing accept to avoid trying defendants from of someone prohibits getting way confrontation. zone, in with
Defendants of a combination contend creation speech escorts, the coercive conduct of clinic eliminates reasonable аlternatives any claim, In cite the testimony for communication. of this defendants support with screening that escorts used such as Jay Baggett techniques patients umbrellas or between demonstrators and signs, placing patients, themselves materials chants to drown out taking prolife away patients, using from However, much of this messages, intimidating demonstrators. prolife education, conflicted with that of director of who testimony plaintiff’s were indicated escorts were advised not to surround instructed patients to tell could literature antiabortion activists. It also patients they accept from conflicted with indicated escort coordinator who testimony plaintiff’s she never tried to drown out antiabortionists or block them from patients. were the trial court’s conclusion that reasonable alternatives Implicit with these alter- available is that escort conduct did not interfere finding natives. This substantial evidence. finding supported by
V a related the trial court erred argument, defendants contend in defendants’ sustaining demurrers to the First Amendment claim plaintiffs defend violated cross-complaint. assert the conduct of escorts They plaintiff’s receive, disseminate, ants’ antiabortion and the patients’ right information.
Free of the state and federal speech provisions Constitutions protect citizens from Free restrictions action. imposed governmental *17 concerns be as may against injunctive raised a shield relief because the only (Accord, of such v. government Bering effectuation Share, relief entails action. However, 721 be supra, P.2d at cannot same concerns Thus, used as a sword to defendants’ against obtain relief party. private contention has no merit.
Furthermore, free even to assert standing have assuming defendants their rights deprivation, clinic and could a claim for speech patients state the trial did not interfere with court found that escort conduct implicitly sug- do defendants’ Defendants not ability message. communicate gest dismissal of Amendment claim admission precluded their First evidence of escort contrary, testimony conduct. On considerable received such regarding conduct.5
VI Lastly, defendants the award fees challenge made attorney Code pursuant to of Civil (hereafter Procedure section 1021.5 section 1021.5). They contend the supported award not and will record have a chilling effect on their exercise rights of free speech protected by the I, First Amendment to the United States 2 Constitution and article section of the California Constitution.
Section 1021.5 codifies the “private general” doctrine for awarding attorney This fees. doctrine “rests upon recognition that pri vately initiated lawsuits are often essential to the effectuation of funda mental public policies embodied provisions, constitutional or statutory that, fees, without some mechanism authorizing the award of attorney actions to private enforce such important will aas public policies practical Assn., matter frequently (Woodland be City infeasible.” Hills Residents Inc. v. (1979) 503, Council 23 Cal.3d Cal.Rptr. 593 P.2d Where, here, as a plaintiff’s action hаs produced monetary recovery, an award of attorney fees is under if (1) section proper 1021.5 the action has interest, resulted in enforcement an important right affecting the public benefit, (2) a significant whether pecuniary or has been nonpecuniary, conferred on the general or a public class of large persons, necessity financial burden of enforcement private make award 5We will not consider vague defendants’ an Civil Act Rights allusion to Unruh violation Code, (Civ. et seq.) arising § from use of the No zone. such claim was raised adjudicated by in or the trial court. Assn., Council, 1021.5; (§ City Inc. Woodland Hills Residents v.
appropriate. 934-935.) supra, 23 Cal.3d at pp. Its deter court found these elements were met. trial the court absent a appeal showing
mination not be disturbed on may fees, i.e., record establishes discretion awarding attorney abused its Inde Community For (Westside no for the award. there is reasonable basis Cal.Rptr. (1983) 33 pendent Living, Inc. v. Obledo Cal.3d 365]; Preg A Free Reproductive Rights 657 P.2d Committee to Defend 329].) “The Center nancy Cal.App.3d *18 of [grant] for its whether the the court grounds given by is pertinent question and, so, if 1021.5 are with the substantive law of section an award consistent of range within the whether their to the facts of this case is application 1021.5, in light read discretion conferred the trial courts under section upon Drew v. Sacramento (City of the statute.” purposes policy (1989) 704].) Cal.App.3d Cal.Rptr. in resulted the enforce Defendants do not that this action dispute ment of an interest and that a significant important affecting public benefit has been сonferred on the or a class of general public large persons. (Cf. (1993) Planned v. 170-172 Parenthood Aakhus Cal.App.4th Moreover, 510].) do Cal.Rptr.2d they necessity private not dispute Rather, enforcement. defendants the financial burden of private contend in enforcement this instance warrant an award of fees. attorney does not The “financial burden” criterion section 1021.5 is met “when the interest, is, cost of the claimant’s transcends his legal victory personal when the necessity plaintiff for the lawsuit a burden on pursuing placed ” (County Inyo ‘out of in v. proportion to his individual stake the matter.’ 71], City Angeles Los 78 Cal.App.3d Cal.Rptr. quoted 89 [144 Assn., Council, with in City supra, Woodland Hills Residents Inc. v. approval 23 Cal.3d at This “focuses not on abstract requirement plaintiffs] [a stake, but on the financial related personal bring incentives burdens Indeed, in in suit. the absence of some concrete interest ing personal issue an being litigated, putative standing bring would lack plaintiff Stores, 311, 321, (Press Lucky action.” Inc. 34 Cal.3d fn. 667 P.2d in interest Defendants claim had a sufficient financial this plaintiff litigation to under section 1021.5. preclude They an award of fees $2.4 in argue the took million evidence “indicated that from [plaintiff] services, provision of came from the medical most of which Sacramento Thus, [g[] Clinic. . . . . . . the clinic a benefit from receives substantial [Ajmerican All funds collected for abortions. have major automakers losses, sustained recent still and defended but lawsuite are brought [sic] The for financial reasons. The same rationale conten- applied plaintiff.” has merit. tion no
First, defendants receives from plaintiff overstate financial benefit medical services it found provides.6 year-end trial court plaintiff’s of revenues over all surplus together liabilities for of its clinics combined $11,914 $30,353 1988, $15,000 only amounted to 1990. words, In other plaintiff’s financial burden of exceeded litigation Moreover, income cor- net three-year period. nonprofit California, sur- poration operating four medical and its clinics northern clinics, are used to dividends for pluses subsidize its not to failing provide shareholders.
Second, the record establishes that motive plaintiffs primary pursuing interest, this action not to its ensure protect personal financial but was to *19 ability its to continue medical providing and abortion services to women. revenues, Plaintiff did not seek to in recover lost it a sought relief represen- tative capacity on of women behalf to obtain abortion services at attempting its clinic. Because defendants’ actions were directed at women preventing cars, from obtaining obstructing abortions them by from out of their getting clinic, by impeding their toward progress or by blocking otherwise lot, interfering with entrances to the clinic parking an sought injunction to its protect patients’ right by to abortion ensuring their access to abortion was not restricted unlawfully.7
Therefore, is this not a of case a that motivated litigant its own solely by pecuniary interests and (See only coincidentally protects public interest. 460, Angelheart City v. (1991) Burbank 232 Cal.App.3d 470 [285 463]; Cal.Rptr. II Colony Beach (1985) v. Coastal 166 Com. California 106, Cal.App.3d 114 485].) Cal.Rptr. As stated recently [212 Planned exaggerates 6The dissent also this factor. 7Claiming injunctive “. . . the decree hardly represents ‘ringing right declaration’ of the (dis. of women to post, 1573), an abortion” opn., p. nothing the dissent views the matter as more than a business owner’s its right enforcement of to use of the beneficial its business premises. Noting that defendant’s plaintiff’s activities threatened meet ability operating to its expenses, However, the dissent concludes plaintiff merely defending very its existence. plaintiff was defending solely its existence profit for a Where motive. an abortion forced, provider is directly or indirectly, to discontinue abortion services because of continued harassment, ability of a to woman effectuate her compromised abortion decision is abortion, rights. violation of her Without access to an to illusory. abortion is Plaintiff recognized this and sought explicitly injunctive patients relief to ensure that its had continuing ability to obtain medical and abortion services. 1564
Parenthood, Aakhus, supra, similar case Cal.App.4th factually 1021.5, which an award of upheld attorney fees under section “the interests clients, and its medical [plaintiff] rendering receiving reproductive care, are mutual and This action was both inseparable. brought protect and its it cannot be character- [plaintiff] patrons; consequently, exclusively ized its as a commenced self-serving, private dispute by [plaintiff] protect (Id., own at pocketbook.” p. there court’s
Because is a reasonable basis the record for the trial criterion, its abuse determination on the “financial burden” the court did not Lewis, discretion defendants ordering Baggett, Murray Don Jay Blythe, Reali, Theresa Marie and John fees pursuant Stoos to pay plaintiff’s attorney to section 1021.5.
There is no merit these defendants’ the attorney contention that fee award should not be assessed them because are against they private individuals. Their status as does not an award private parties preclude Aakhus, (Planned attorney fees. supra, Parenthood v. Cal.App.4th 175; County (1991) Fresno v. Lehman Cal.App.3d 310]; Braude v. Cal.Rptr. Automobile Club Southern Cal. 914]; Cal.App.3d Cal.Rptr. v. Monardo Franzblau 108 Cal.App.3d 529-530
Defendants’ claim that an award of attorney fees would operate because, chill their rights to also is as we shall unavailing defendants’ conduct explain, exceeded the af unquestionably protection forded First Amendment to the United States Constitution and *20 I, Constitution, article section of the California and interfered with the exercise others by (Planned constitutional to an Par right abortion. enthood v. Wilson 1670-1674 Cal.App.3d 427]; 1501-1505; Shawley, Allred v. supra, 232 at see also Cal.App.3d pp. Aakhus, 175; Planned Parenthood v. supra, Chico Fern. Cal.App.4th (E.D.Cal. 1983) Women’sFilth. Cr. v. Butte Glenn Med. S. 557 F.Supp. “ 1202-1204.) First Amendment does not offer a for viola sanctuary ‘[T]he tors. same constitution that the defendants’ to free protects speech, protects also [plaintiffs] right to abortion services and the to patients’ rights ” Center, (Northeast (3d receive those McMonagle services.’ Women’s Inc. v. 1989) Cir. 868 F.2d
As discussed the medical defendants obstructed access to previously, and building and pаrking private buildings lot. access to “[Blocking public has never been in an upheld orderly as a method of communication proper (N.Y. (2d society.” 1989) State Cir. Terry Nat. Women v. Organization for 1339, 1364.) to clients from attempted prevent 886 F.2d Defendants also times, out of their in doors. At getting by standing cars front of car other of her defendants would so that when out position patient got themselves patient car she was her car vehicle. Once a pinned adjacent between vehicle, was able to leave her defendants’ frustrate the efforts to patient’s interest get effort to to the clinic After indicated a lack patients continued. alone, in defendants the demonstrators’ views and a wish to left expressed be them, chase even continued to thrust literature at at the yell patients, occasion, them thrust some Baggett down the sidewalk. On one defendant had not in a head if sign patient’s face and would have hit her in she Reali, occasion, inside moved On was out another defendant who way. woman. building, chased and thrust at a tearful antiabortion literature Furthermore, to defendant were Blythe attempting assaulted escorts who assist women access to gaining the clinic.
Plaintiff to sought injunction According due to this conduct. type administrator, plaintiff’s executive director and the although pick- clinic had been eting on for a court was not until going year, action pursued defendants harassed and ac- women abortion services aggressively seeking issued, came tually into the After building. order temporary restraining after the again prеliminary injunction attempted to granted, plaintiff settle this matter. making Plaintiff offered to to stipulate injunction and, return, permanent so as to avoid the necessity cost of trial modify injunction to make it less When objectionable defendants. unsuccessful, plaintiff’s efforts were the matter went to The relief trial. granted in the permanent injunction was not significantly different from that granted the preliminary injunction, the exclusion including of defendants from the parking lot.
Consequently, the attorney fees incurred were by necessitated defendants’ refusal limit their conduct to that the First protected by I, Amendment to the United States Constitution and article section the California If Constitution. engaged defendants had not unprotected conduct, and, thus, plaintiff would not have initiated this action would have incurred the attorney fees question.
The fee attorney award does operate rights not to chill defendants’ freedom of speech because it not does them from prevent continuing demonstrate exercise the rights within lawful limits set speech forth in the injunction. No legitimate claim can be that the fee attorney made award defendants after punishes the for did know they fact conduct not was and, therefore, the beyond protected realm of the freedom defend- of speech and others will ants be inhibited in freedom the future of their exercise for fear of being Even the naive “penalized” again. most person would have known defendants’ conduct—obstructing access to a lawful acts of enterprise engaging assault harassment to women prevent who had expressed disinterest defendants’ views from the exercising constitutional to abortion—is not absolved by invoking protections I, afforded the First Amendment When a and article section 2. liability the bounds of criminal person oversteps protected civil and speech, Center, (Northeast F.2d may McMonagle, supra, attach. Women’s Inc. v. 1391, 1348-1350; 1989) at pp. (3d cf. Radiche v. Goode 886 F.2d Cir. The infirm dissent asserts the fee award is because attorney trial fix the court not out conduct or parse illegal from the legal “[did] responsibility individually impact acts and the illegal proportionate 1578, conduct fn. illegal (Dis. post, on at plaintiffs litigation p. costs.” opn., omitted.)
However, defendants do not attack the
fee order on this basis.
Moreover, NAACP v.
Claiborne Hardware Co.
1567 conduct, for the of violent it legitimately may impose damages consequences nonviolent, not award for the may compensation consequences protected Hence, (Id., 1240].) activity.” at L.Ed.2d at those p. p. only [73 defendants who in were engaged unprotected, responsible violent conduct the caused their damages only by for to extent the were damages 1244, 1249].) (Id., unlawful conduct. at L.Ed.2d at pp. Here, Co., in commenced unlike NAACP plaintiff v. Claiborne Hardware conduct, the this action enjoin unprotected to defendants’ unlawful and engaged defendants injunction granted was and all of the proper, injunction. seek the unprotected activities which caused to plaintiff an Because retain counsel to secure compelled it is unprotected defendants, order enjoining engaged conduct all to hold all of them accountable for fees.8 proper plaintiff’s attorney basis, defendants, The dissent offers another not advanced yet to overturn the attorney fee Stating picketing award. that union members their employers’ businesses have been from related frequently enjoined conduct which on the unduly infringes rights, employers’ property dissent there suggests are no cases which have individual union required members to pay fees incurred attorney by the businesses obtaining injunctions. there Implying are no such were cases because picketers asserts, exercising their First Amendment the dissent rights, by analogy, fees should attorney (Dis. not be awarded case. post, present opn., 1575-1576.) pp. We are unpersuaded. Ordinarily, attorney fees pursuant section 1021.5 would not be warranted in an enjoin action to certain conduct business, of union members if picketing even the employer’s picketers’ conduct included actions unprotected by the First Amendment. This is so (1) because injunctions obtained by employers necessarily do not confer a significant benefit upon (2) general public or class of large persons, 8We recognize that a apportion trial court has discretion to attorney a section 1021.5 fee award based upon (Californians culpability the relative Responsible of the defendants. Management Toxics (1989) 599]; v. Washburn Cal.App.3d Kizer Cal.Rptr. 976 [259 City Berkeley v. Cal.App.3d 784]; Sundance Cal.Rptr. 592-593 However, Municipal Court Cal.App.3d in this case apportion the trial court was not asked to attorney among fee award the defendants. Accordingly, it cannot be said the trial court abused its by failing discretion to order an Moreover, plaintiff apportionment. theorized that defendants “acting were in concert" with the other demonstrators concerted effort patient plaintiffs obstruct access to abortion support There is evidence to example, suggested services. such an inference. For evidence Baggett, Blythe that defendants and Lewis exercised leadership roles in the demonstrations Baggett, Blythe, Operation By and that Lewis Stoos welcomed the assistance of Rescue. award, ruling jointly the defendants are and severally attorney liable for the fee the trial court appears they equally to have concluded that were culpable unprotected conduct which gave rise to the fee award and that in a engaged none of them lesser role which justified apportionment would have of the fee award.
1568 if employers their champion only individual property rights, financial burden of litigation would not their in outweigh stake the matter. personal Hence, the analogy invoked by dissent is inapposite. brief,
In their reply defendants fee award should be argue reversed due to fact that some were incurred litigation expenses an plaintiffs seeking line restriction because impermissible sight defendants activities believed had a conduct their they constitutional to in the v. lot and on the note that Allred parking sidewalk. Defendants Wilson, Shawley, supra, 232 v. 1489 and Planned Parenthood Cal.App.3d supra, 234 which to Cal.App.3d plain- held that lots similar parking forums, tiff’s are not or decided until after public quasi-public were not Thus, defendants, trial in this case was completed. “op- to according tions were to be intimidated fear abandoning fees into attorneys [sic] were, time, what at the established constitutional to a rights, stipulating restriction, line of or sight to risk their life losing savings.” in Generally, raised will points reply brief for the first time not be considered unless good cause is shown for the failure them present before. 325, 335, (Neighbours v. Oates Enterprises fn. Cal.App.3d Buzz [265 Defendants have failed to establish good event, cause for their omission. any defendants’ contention is unpersua sive for two reasons.
First, time, the activities engaged were by defendants not “at the established constitutional rights.” Defendants cite no cases holding private property similar to plaintiff’s parking public lot is a forum which must be made available for the exercise of free rights. This is speech understandable because cases indicate the The pertinent contrary. First Amendment to the United States Constitution does not individuals give an unqualified right to engage expression assembly on private Tanner, 567-570, (Lloyd Corp. property. supra, v. at U.S. pp. 142-143]; NLRB, L.Ed.2d at pp. Hudgens supra, v. U.S. at 516-521 pp. circumstances, 204-207].) L.Ed.2d at pp. Under limited are people entitled exercise First Amendment rights on which has private property assumed all of the characteristics of a and has municipality been devoted use, sufficiently public circumstance which is not this plainly present (Ibid.; case. Marsh v. Alabama 326 U.S. 506-507 L.Ed. 268-269, 276].) 66 S.Ct. California Constitution more definitive and (Robins than the First inclusive Amendment protecting expression. Center, supra, Pruneyard Shopping 908-909.) As noted in Cal.3d pp. IV, ante, Robins held that California’s part Constitution independently pro tects petitioning rights exercised reasonably large, privately *24 such malls have central business supplanted owned centers because shopping (Id., 5.) at fn. community. p. districts as essential forums of a public However, (id., 910-911) the court the size of the mall at emphasized pp. “ have under and cautioned: ‘It bears that we do not repeated emphasis or individual homeowner consideration the or of an property privacy rights ” 910.) In other (Id., at p. the of a modest retail establishment.’ proprietor words, to a small adjacent did that a that is parking Robins not hold lot use to tenants medical and has its building signs posted restricting fact, a modest In that such clients is a forum. Robins intimated public establishment is not a forum. public demonstrations, no case there was at the time of the
Accordingly, had a constitutional law which would have led defendants they to believe the that right ignore lot—warning to on signs posted plaintiff’s parking lot was reserved for use and that parking trespass of tenants and customers ers would be to enter an effort to prosecuted—and onto lot parking convey message. antiabortion
Moreover, even if lot was a they honestly thought parking quasi-public forum, defendants had had a constitu- they nо basis to believe absolutely tional to enter the lot to interfere with the conduct of plaintiff’s business use of the movement of customers or property, impede tenants, access, business to block disturbances or to harass noisy create (In 851-852.) uninterested Hoffman, supra, re Cal.2d at patrons. pp. Second, the fact that did not in its to increase the plaintiff attempt prevail speech zone to an area within the line of and rear sight of front entrances to the medical fee building does not undermine the award. attorney Despite defendants’ that the trial court reduce the fee award request attorney based failure “line upon plaintiff’s prevail sight” on the so-called restriction, the trial court declined to do so. We find no abuse of discretion. Court, (Sundance Municipal v. supra, 192 record Cal.App.3d fact, did avidly discloses a line of restriction. plaintiff pursue sight indicated it would free zone. In its plaintiff readily a 20-foot accept brief, even where the plaintiff suggested trial court “put picketers if women can see them and them interested from voluntarily approach (away circumstances, Under the the trial court reason- building).” the front have an insignificant attorney could concluded that ably portion plaintiffs a line litigating sight fees were restriction. expended A fee reduced award is when a claimant achieves appropriate (Sokolow (1989) 213 limited success. Mateo County San only Here, virtually all it got Cal.App.3d plaintiff Hence, asked for. did trial court not err awarding full for its compensation аttorney fees.9 we
Although shall affirm the order as Baggett, to defendants Lewis, Reali, Stoos, Blythe, we will fee award as to reverse defendants John Walker correctly Rescue. Operation They contend not be held liable an award of they may fees because plaintiff’s attorney such fees is precluded Code of Civil Procedure section 580.
Walker complaint, Rescue did not file Operation plaintiffs answers 580 and defaults were entered section Code of Civil Procedure accordingly. answer, cannot provides: granted “The to the be no plaintiff, there relief if in any exceed that which he other complaint; shall have demanded in his but case, by the Court him made may grant relief consistent with the case any (Italics added.) and embraced within the complaint issue.”
Code of Civil Procedure section interpreted 580 has been repeatedly accordance with A its trial court no plain language. jurisdiction grant has a plaintiff more relief against a defendant than is asked for defaulting 1160, (In complaint. Marriage of Lippel (1990) re 51 Cal.3d 1166-1167 [276 290, 1041, 1156]; Cal.Rptr. 801 P.2d 5 Rodman Greenup A.L.R.5th v. 822, 220, (1986) 42 1295]; Cal.3d 826 726 P.2d Becker v. Cal.Rptr. [231 489, 825, (1980) S.P.V. Construction Co. 27 Cal.3d 493 612 Cal.Rptr. [165 915].) P.2d
Plaintiff’s complaint does not contain any allegations concerning attorney fees, nor does it demand such If fees. believed it was entitled plaintiff fees, statute to it attorney had to that fact its allege demand complaint the fees in the in order relief prayer to obtain such against any defaulting justified. it abuse L.Ed.2d and raised in expended on the plaintiff hand, amount. This will be true even where the (Hensley v. Eckerhart Unruh County Suрreme litigation, and indeed in some cases a fully obtained the vast 9Although trial court has discretion in a its discretion in compensatory (1982) plaintiff of p.at failed Court, In these San 53].) good 32 Cal.3d Mateo, “[w]here has achieved controlling, litigation prevail As circumstances, faith. majority fee. we have (1983) awarding supra, a Normally, on . . . 621, 639, plaintiff as a whole times a every federal only partial 461 213 indicated, [T]he full compensation. determining the fee award should not be reduced simply because the U.S. contention raised in the lawsuit. Cal.App.3d has obtained excellent this precedent relief fn. 29 most critical factor is the 424, will because or limited exceptional requested plaintiff’s [186 encompass 435-436 is of reasonable at Cal.Rptr. plaintiff amount of p. analogous success, in its claims were 249.) [76 success an all hours results, L.Ed.2d obtained “excellent complaint, hourly 754, According precedential fee award. degree product 652 P.2d reasonably expended his rate interrelated, nonfrivolous, 40, enhanced award ... attorney the trial court did not 52, may to the United States of hours [1] success {Id., value. 103 S.Ct. 985]; be an excessive If, results” should recover at on the other Sokolow v. (Serrano p. reasonably obtained.” 437 [76 may 1933].) in that on the be v.
1571 Co., 495; (Becker supra, Cal.3d at p. defendants. v. S.P.V. Construction 27 1470, 279].) 223 It Wiley Cal.Rptr. v. Rhodes Cal.App.3d [273 is that failed to fees as costs its noteworthy request attorney also 1474, (Wiley, supra, to enter default. at fn. requests p.
Plaintiff contends the award proper request because judgment fees under section 1021.5 need not be made until after the (Stebbins (1992) Cal.App.4th final. this is true. Ordinarily, v. Gonzales Burbank, 88]; supra, Angelheart City v. Cal.Rptr.2d 466; Berkeley City v. Cal.App.3d Against Rent Control Citizens 265]; Washburn see also 226-227 Cal.App.3d Cal.Rptr. City Berkeley (1987) 195 Cal.App.3d However, whom defendants against aforesaid cases do not involve Hence, half of defaults were entered. those are the latter governed by cases where Code of Civil Procedure section which case any provides an answer has been filed “the relief any Court may grant plaintiff] [the with consistent the case made and embraced within complaint *26 issue.”
Plaintiff has cited no cases that an award under holding attorney fees section 1021.5 is a against defendant where a demand for proper defaulting such fees was not included in the and our research has disclosed complaint, none. Accordingly, plaintiff constrained and plain unambiguous mandate of Code of Civil Procedure “The relief section 580: to the granted answer, if there plaintiff, be no cannot exceed that which he have shall in demanded his . . .” complaint;
Because did not demand plaintiff fees its attorney complaint, court did jurisdiction not have to award such fees defendants Walker and against conclusion, Rescue. In Operation light of this it is unnecessary consider Rescue, i.e., the additional challenges raised Walker and Operation fees attorney may not be awarded because the did judgment grant them, relief plaintiff any against or that be held they may not liable for fees addition, incurred after their defaults were In need entered. we not address Rescue’s to sеrvice a Operation challenge as basis for process reversing fee award as to Rescue. attorney Operation
Disposition is reversed Walker fee order as to defendants attorney Operation fee respects, judgment attorney Rescue. all other order are Lewis, Reali, Blythe, Baggett Defendants and Stoos affirmed. shall pay on costs Plaintiff shall the costs on of defend- plaintiffs appeal. pay appeal ants Walker and Operation Rescue. J., concurred.
Raye, PUGLIA, J., P. I concur the Concurring Dissenting. opinion court to the extent it affirms the judgment granting plaintiff permanent against and reverses the fees as injunction awarding attorney order plaintiff affirmance defendants John Walker and I from the Operation Rescue. dissent the answer- of the trial court’s order awarding plaintiff attorney against fees ing defendants.
Defendants attack order for fees on two attorney grounds: failed to establish the financial is dispropor- burden of enforcement private attorney than its in the tionately greater litigation stake award of rights fees these circumstances burdens defendants’ unconstitutionally I infirm speech. agree the order is on both grounds.
I Code of Civil Procedure award fees permits section 1021.5 to a successful an party any resulting action “the enforcement of benefit, (a) if: important right affecting public significant interest whether or has conferred on the pecuniary nonpecuniary, general public been (b) or a class of and financial burden of large persons, necessity privаte *27 (c) enforcement are such as to make the award such fees appropriate, in should not the interest if justice any.” be out of the paid recovery, Defendants contend the failed to establish that the financial plaintiff burden I enforcement warrants an award of fees. private attorney agree. a Despite being nonprofit organization, are plaintiffs operations significant, 1990, in with four clinics Northern In California. had a plaintiff budget $2.4 million. Plaintiff receives its income operating fund-raising from rendered, fees for services with the greater coming from the latter. portion $10 range $295 Fees from In anywhere for minor services to for an abortion. $1,427,746 1988 received in plaintiff In fees. 1989 amount was $1,865,440 $2,346,891. in 1990 it was 2,500 3,500
In 1988 the clinic saw This number to grew patients. 6,000 6,000 1990, 2,500 3,000 and to Of 1990. seen to had patients abortions Due to attendance of performed. picketers, patients the conduct of at the clinic on as 50 percent. as much to Saturdays dropped by According Heckert, administrator, Shauna “would want the clinic’s to patients change a different needed to Because a substantial number of who facility.” patients elsewhere, the clinic’s services obtained them asserts the picketing it “a caused tremendous financial loss.” an means that
“The financial burden of enforcement private requirement when award of fees under section 1021.5 ... only appropriate her personal the cost of the claimant’s transcends his or legal victory interest—i.e., on a burden when the the lawsuit necessity pursuing placed in the matter. individual plaintiff out оf to his or her stake proportion (Luck (1990) v. Southern Co. Transportation [Citation.]” Pacific 618].) Cal.App.3d Cal.Rptr. Plaintiff was existence fee As very entity. its as a for service defending activities, fell plaintiff’s customers off because of defendants’ plaintiff’s to meet Given ability plain- was threatened. the size of operating expenses $99,000 revenue, tiffs and its annual is not out of operations legal bill proportion plaintiff’s stake the litigation. the relief
Although granted vindicated in the plaintiff’s interest contro- versy, injunctive decree declaration” of the hardly represents “ringing (See of women to an abortion. Foundation v. Legal Pacific California Coastal Com. 306].) 33 Cal.3d P.2d Cal.Rptr. The decree simply insures undisturbed of fee- access plaintiffs facility paying customers who choose to clinic rather than some patronize plaintiff’s other similar facility. Its effect is injunction no different than an against union members picketing business a labor employer’s dispute. cases, such the injunction allows the to continue the beneficial use employer of its business The fact that the premises. also enables injunction frequently nonstriking employees who are strangers litigation to resume of their pursuit livelihoods is an incidental simply effect.
The claimant bears burden of its are establishing litigation costs out of (Beach to its stake in the II proportion personal Colony matter. v. California 106,113 Coastal Com. Plaintiff Cal.App.3d *28 did not meet this burden.
II renew trial Defendants their court contention that the fees award exercise of their First I agree. chills the Amendment rights. Again, on issues public highеst ‘has rested on the of “[Expression always rung Brown, 455, hierarchy First Amendment 447 Carey values.’ v. U.S. 1574 263, 2286],
467 L.Ed.2d 100 S.Ct. affairs is ‘[S]peech concerning public [65 more than it is the essence of Garrison v. self-expression; self-government.’ Louisiana, 64, 125, U.S. 379 74-75 L.Ed.2d 85 S.Ct. There is a [13 209]. ‘profound national commitment’ to the that ‘debate on principle public uninhibited, robust, issues should be Sullivan, Times Co. v. and New York wide-open.’ 254, 686, 710, A.L.R.2d 376 U.S. L.Ed.2d 84 S.Ct. [11 Thus v. Claiborne spoke United States Court in NAACP Supreme 1412.]” Hardward 102 S.Ct. Co. 458 U.S. L.Ed.2d [73 3409], clinic,
In their their activities at defendants plaintiff’s expressed abortion To country. say views on a national that divided the controversy has deeply that the manner understates the was robust and uninhibited expression Indeed, strident, and “Strong case. it was and confrontational. accusatory effective extemporaneous nicely purely rhetoric cannot be channeled Co., (NAACP at p. dulcet v. Claiborne 458 U.S. phrases.” supra, Hardware Nevertheless, message L.Ed.2d at the defendants’ well within the bounds of For constitutionally example, protected speech. “murder, clinic, murder, murder,” defendants entering shouted at women them not to “kill" implored messages their babies. Representative on the signs defendants were these: “Abortion Kills posters displayed by Babies, Holocaust”; “Abortion, Abuse”; the Ultimate Child “Dr. Stop Here”; Bruce Steir Butchers Babies Heckert’s Baby Hackery”; “[Shauna] “Abortion, An Act of Raw Power.”1
Defendants,
them,
or at least some
that are
engaged
also
activities
or
constitutionally protected
example they
otherwise
For
privileged.
times blocked
to the
ingress
and the
lot and
building
parking
impeded
patients
оthers
and enter the
But it
attempting
approach
grossly
clinic.
distorts the record to suggest that defendants’ activities involved a continu-
ous, unbroken series of
unrelieved
illegal acts
exercise of
pristine
fact,
latter,
it is the
expression.
constitutionally protected activity
and thus more
predominated
accurately characterizes defendants’ activities.2
conduct,
defendants demonstrated their
By
devotion to
passionate
I
what is
known as the
cause. While do
commonly
prolife
not condone
in Roe Wade
message appears
send-up
1The latter
to be a
v.
Justice White’s dissent
705],
Justice White excoriated the Roe v.
(1973)
Because defendants’ exercise of freedom in its defendants’ engage activity property, to lawful on case, time, In this to and manner. could be restricted as expression place a decree court and the evidence and issued carefully weighed considered Defend- interests. which strikes an balance between the competing appropriate interfered with enjoined directly plaintiff’s ants were from conduct which hand, On the other on business activity premises. conduct lawful its rejected the court of free recognizing sanctity expression, constitutional in the demonstrating demand that defendants be from plaintiff’s precluded i.e., clinic, activities immediate which their vicinity any location could within the be observed from clinic. Amendment there is litigation,
Viewed the historical context of First remarkable about this or its resolution nothing particularly dispute and demonstrations through trial court. exercise of expression and democracy in the life of our history has a venerable picketing political Yet on countless influencing hаs a vital role played public policy. it was plaintiff’s employees patients, and some of and contact between some of the defendants found, and, engaged shoving blocking as the trial court bumping, to and confined controversy. right forcibly had no to commandeer both sides of this Defendants partisans on clinic, plaintiff’s message impede nor to access to an audience hear their commu- attempts peacefully to right forcibly to interfere with defendants’ agents had no its adjacent conducting specified areas enjoining defendants from their activities By nicate. clinic, While I do not foreclose of this conduct. sought any repetition the trial court circumstances, given persons the numbers of involved any conduct in condone this of, level of force activities protest place, in which the took the incidence period of months in, defend- hardly justify extravagant characterization physical such encounters used as “violent.” activities ants’ *30 1576
occasions courts have been called to rein in upon demonstrators and picket- ers whose passion and in exuberance furtherance of their causes has trenched upon rights of others to lawful engage activities. For union example, members who broadcast their views a labor their dispute by picketing employer’s business frequently have been enjoined from conduct that unduly And, case, infringes upon employer’s such property rights. as this conduct has often had the incidental effect of with constitu- interfering tional rights of third parties. Thus disputes, picket- labor union-employer ed frequently prevent their liveli- nonstriking from employees pursuing 1042, (See 390, Meyer hoods. v. Nebraska (1923) 262 U.S. L.Ed. [67 1045, 625, Planned Parent- S.Ct. A.L.R. cited with approval 1446] _ hood Casey 696, v. 505 U.S. 112 S.Ct. L.Ed.2d 2791]. If in those injunction (as distinct proceedings individual union members itself) from the union have been held liable for the personally employer’s it attorney fees has if escaped my notice and I would it were to be astounded be allowed.3 Co., NAACP v. Claiborne Hardware
In defendants, supra, Black persons seeking to achieve racial justice, were sued in acting state court for in concert to boycott number of white merchants. The was marred boycott aby number of illegal acts. The United States Court characterized Supreme it as “chameleon-like . . . including] elements of and elements criminality (458 of majesty.” U.S. at p. 1221].) L.Ed.2d at Supreme Court reversed a joint and several judgment defendants and in against favor 3Unlike rights, abortion property rights and free speech rights enjoy express protection government from infringement in the federal Property rights protected Constitution. are expressly by II, V Amendments and XIV implicitly by Amendments III and IV. Free contrast, speech rights protected are expressly by right Amendment I. In the constitutional to an abortion derives either “penumbras from specific formed emanations from” the guarantees Rights (Griswold of the Bill of v. Connecticut 381 U.S. 484 [14 510, 514, Wade, 1678]; L.Ed.2d 85 S.Ct. Roe supra, v. 410 U.S. 152-153 L.Ed.2d 147, 176-177]), isor subsumed within the “heart of liberty protected by the [the] [interest] Amendment,” which, told, Fourteenth an interest we are particularly protects right “to existence, universe, define one’s conсept own meaning, mystery of the and of the (Planned human U.S__[120 life.” Parenthood Casey, supra, v. L.Ed.2d In time, perhaps, a less vaporous theory rights constitutional may abortion be divined construction, jurists adept even more at creative but we must accept existing handiwork of betters, event, judicial unconvincing our though may it be. any may whatever be the abortion, provenance right constitutional right an superior is not to other constitutionally protected rights speech, such as free property rights right and the fundamental pursue protected one’s livelihood which is also process as a function of substantive due Nebraska, (see Meyer supra, 390). 262 U.S. implicit The notion in the canon many rights supporters of abortion that the trumps an abortion all rights other constitutional case, course, simply is a faddish conceit. In this does government not contend that unconstitutionally trenching is on its property rights rights or on the of plaintiff’s clients to an However, abortion. defendants do government infringing contend upon protected rights by virtue of the judgment against plaintiffs attorney them for fees. *31 the White relief and business losses injunctive damages of merchants for for the The the activities due to fees. court held nonviolent boycott plus attorney (458 are Amendment U.S. at 915 p. of defendants entitled to First protection. 1237].) damages L.Ed.2d at “While State p. legitimately may impose the [73 conduct, for for the of it not award consequences may compensation violent nonviolent, proxi the of those losses consequences activity. Only protected 918 (458 at p. cаused unlawful recovered.” U.S. mately by may conduct be “ field, 1240].) employ ‘In may L.Ed.2d at this sensitive the State p. [73 can end that when the “means stifle fundamental liberties broadly personal 479, Tucker, more U.S. [5 be achieved.” Shelton v. narrowly Anne, U.S. (1960).’ L.Ed.2d 81 S.Ct. Carroll v. Princess 247] L.Ed.2d (458 183-184 L.Ed.2d 89 S.Ct. U.S. at p. 347].” p.
The lawful and unlaw- court “At times the difference between explained: In ful collective its purpose. action be identified reference to may easily by case, however, this were ultimate objectives unquestionably [defendants’] legitimate. The charge illegality—like protec- of the claim of constitutional tion—derives from the means achieve those employed by the participants marches, The use goals. of and threats ostracism cannot speeches, of social the provide basis for a conduct is the damages beyond award. But violent of pale constitutional protection.
“The taint of violence the the colored conduct of some of [defendants]. course, of They, be held liable for may of their violent consequences deeds. The burden demonstrating effort, that it colored the entire collective of however, is not by evidence that or even that violence occurred satisfied violence contributed to the A boycott. prolonged success massive and of social, change political, and structure a local economic effort of environment cannot be as conspiracy simply by a violent characterized refer- ephemeral ence to the consequences relatively violent acts. Such a of few supported by must be disclose the findings adequately that characterization evidentiary basis concluding specific parties that to use agreed for unlawful means, conduct, carefully identify impact that such and that unlawful recognize importance avoiding imposition consti- punishment for tutionally protected activity. The demonstrating burden that rather than fear protected conduct was the dominant A court heavy. in the movement force must of a claim that the true revealed wary be color of a forest is better hidden the weeds freestanding than of countless reptiles foliage trial findings constitutionally trees. ... are insuf- judge] [state for all losses judgment ficient to are liable support [defendants] (458 boycott.” from the L.Ed.2d at resulting U.S. at pp. added.) 1249], italics to the and several respect joint judgment against defendants for plain- fees,
tiff’s attorney facts here are to those Clai- closely analogous A borne. award monetary for fees has no less a effect on the chilling exercise First Amendment than if the were rights award denominated one Such a compensatory damages. utterly distinction would be sophistical. The exaction of money from defendants will burden them with the same baleful economic no More- consequences matter the label on the judgment. *32 over, the the notwithstanding illegal acts of some of the defendants some of time, defendants’ primary was to communicate their views on purpose controversial highly great issue of interest and concern. Most public thus defendants’ activities furtherance of that were lawful and purpose The the constitutionally protected. trial court’s do not out findings parse legal from the fix illegal illegal conduct or the for responsibility individually acts and the proportionate impact illegal litigation conduct on plaintiffs costs.4 the which Conversely, trial court made no on the extent to finding plaintiffs costs were limit litigation increased the unsuccessful effort to by clinic, defendants’ activities further the picketing to areas removed from relief which the trial court refused it be an presumably because would unreasonable rights restriction on defendants’ constitutionally protected expression. record will not simply monetary judgment support against defendants inevitable of which will be to stifle the consequence exercise of First Amendment not rights, only by by defendants but all others inwho future will forswear their rights because cannot afford financial they ruin, much penalties, less financial as the price exercising constitutionally guaranteed rights.5
By to court in the land “constitutionalizing” highest abortion has preempted any role policymaking branches of by political govern- inment to respect abortion. Citizens dissatisfied with govern- public policy abortion can ing longer no look to their for But the legislators change. high court did not and could not foreclose further the subject. debate on political is, all, America, This after the United States of not the “Evil What Empire.” do, however, court did if high to constitute the streets the primary, majority implies 4The defendants have waived any failing clаim the trial court erred in to distinguish between constitutionally protected unprotected assessing attorney conduct in (See, e.g., maj. opn., p. fees. fn. 8 at From outset defendants have maintained that for fixing liability attorney rights them with fees would chill their of free because their constitutionally protected. good conduct was It is clear from the record that a deal of their that, contention, constitutionally protected contrary was and the fact to conduct defendants’ hardly operates entirety. to forfeit their its protection some was not claim constitutional fees, plaintiff’s request for attorney defendants filed declarations of their opposition 5In showing they people very that are responding points status modest resources. In financial airily dismissed these garbage.” declarations as “verbal Defendants’ and authorities uncontradicted. stand declarations in the of the streets lacks the only, forum for debate. Debate forum which could orderliness and of the forum to citizens civility legislative are not governed otherwise to influence Street debaters repair public policy. realities, Robert’s Rules of Given these we should not be “slow by Order. well as subtle as that the of the First Amendment bars recognize protection (NAACP obvious devices which be stifled.” guarantees] might [its Co., supra, p. Claiborne Hardware 458 U.S. at L.Ed.2d I entirety. would reverse the fees its judgment 20,1993, opinion A and the petition for a was denied rehearing September was modified to read for review as above. printed Appellants’ petition Panelli, J., Court was denied November Supreme 1993.
opinion that should be petition granted.