know Cochran and they have never communicated with anyone at ORC or any Operation Rescue entity about their counseling and picketing activities at the San Mateo clinic by f8Gixj5

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									Filed 3/3/03; part. pub. order 3/24/03 (see end of opn.)

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                                DIVISION TWO


PLANNED PARENTHOOD GOLDEN
GATE,
         Plaintiff and Respondent,                             A098455, A098457, A096588

v.                                                             (San Mateo County
ROSSI FOTI, et al.,                                            Super. Ct. No. 415891)
         Defendant and Appellants.


                                          I.       INTRODUCTION
         In 1995 Planned Parenthood Association of San Mateo County obtained a
permanent injunction limiting demonstration activity outside its clinic in San Mateo (the
1995 injunction). In February 2001, Planned Parenthood Golden Gate (PPGG)1 filed the
instant action seeking a declaration that the 1995 injunction applies to appellants, Rossi
Foti (Foti) and Jeannette and Louie Garibaldi (the Garibaldis). The trial court denied the
Garibaldis’ motion to strike PPGG’s complaint pursuant to section 425.16 of the Code of
Civil Procedure, California’s anti-SLAPP statute. Thereafter, the court granted PPGG
summary judgment. The Garibaldis separately appealed from the order denying their
motions to strike and from the summary judgment. Foti also appealed from the summary
judgment. This court consolidated these three related appeals.




1
       PPGG describes itself as the resulting entity of a merger among Planned
Parenthood of Marin, Sonoma and Mendocino, Planned Parenthood Alameda-San
Francisco, and Planned Parenthood of San Mateo County. Appellants do not dispute this
assertion.


                                                           1
       We affirm the order denying the Garibaldis’ motions to strike. However, we
reverse the summary judgment because there are triable issues of material fact as to
whether the 1995 injunction applies to appellants.
              II.    FACTUAL AND PROCEDURAL BACKGROUND
A.     The 1995 Injunction
       Planned Parenthood Association of San Mateo County obtained the 1995
injunction in a state court action it filed in September 1993. (Planned Parenthood Assn.
v. Operation Rescue (1996) 50 Cal.App.4th 290, 298 (Planned Parenthood v. ORC).)
The 1995 injunction was sought and granted to remedy problems caused by the Planned
Parenthood v. ORC defendants’ demonstration activities at Planned Parenthood’s clinic
in San Mateo (the San Mateo clinic) which commenced in 1988 and continued even after
Planned Parenthood obtained temporary federal injunctive relief.2
       The 1995 injunction was entered against two named defendants, Operation Rescue
of California (ORC) and Robert Cochran (Cochran). According to its terms, the 1995
injunction applies to: “Defendants and their agents, employees, representatives and all
persons acting in concert or participation with them, or either of them, and all persons
with actual notice of this judgment.”

2
        During this period, the defendants organized and coordinated regular protests at
the clinic. (Planned Parenthood v. ORC, supra, 50 Cal.App.4th. at p. 294.) Those
protests included “several ‘very large . . . blockades’ of more than 100 protestors [that]
resulted in the clinic’s temporary closure. Typically, ‘rows of people block[ed] all the
doors’ to the clinic. On at least one occasion police arrested protestors inside the
clinic. . . . Patients found the protests threatening, and some did not come into the clinic
for appointments. Noise from the protests could be heard in the patient waiting room,
which abuts the sidewalk. The protests caused the clinic to shift its entrance doors and to
hire and train staff for an ‘escort program’ to bring patients through the protestors.” (Id.
at p. 296.) Patients were angered, upset and frightened by these protestors who tried to
prevent people from driving into the clinic parking lot and demonstrated so loudly they
could be heard inside the clinic. (Id. at p. 297.) There was evidence that the patients’
heightened stress levels complicated their medical procedures. Some required additional
counseling or medication. Others canceled or delayed appointments in order to avoid
protestors. The evidence showed that delaying an abortion procedure increased the
likelihood patients would experience complications. (Ibid.)


                                             2
       The 1995 injunction restricts demonstration activities at the San Mateo clinic and
also imposes restrictions on demonstration activities directed at “Dr. O.,” a physician
who treated patients at the San Mateo clinic.3 The provisions pertaining to the San Mateo
clinic restrain and enjoin individuals subject to the 1995 injunction from directly or
indirectly: (1) “Entering or blocking or obstructing the free and direct passage of any
other person into or out of” the clinic; (2) “Demonstrating, picketing, distributing
literature, or counseling” on clinic property “or within fifteen (15) feet of such private
property”; (3) “Entering or blocking or obstructing the ingress or egress of any vehicle to
or from any parking area” in front of or behind the clinic; (4) “Obstructing or impeding
the movement of any person” who is moving between a vehicle and the clinic or using a
walkway leading to the clinic; (5) “Shouting, screaming or otherwise producing loud
noises which can be heard” in the clinic; (6) “Physically touching threatening to
physically touch, or shouting” at people entering or exiting the clinic.
B.     The 1998 Action
       On July 24, 1998, Foti filed a complaint for damages and injunctive relief against
PPGG and several individuals alleging defamation, abuse of process, infliction of
emotional distress and battery (the 1998 action). Foti alleged that PPGG and “escorts”
employed by PPGG unlawfully interfered with him in order to prevent him from
exercising his constitutional right to engage in picketing, leafleting and counseling
outside the San Mateo clinic and outside Planned Parenthood clinics in Menlo Park and




3
        PPGG ignores the portion of the 1995 injunction pertaining to Dr. O. We do not
focus on that portion of the injunction since there is no evidence that appellants have had
any interactions with Dr. O. However, it is important to note that these restrictions are
part of the injunction that the trial court found applies to the appellants in the present
case. As will become evident, it is also important to our analysis that there was
significant evidence regarding the conduct of the defendants in Planned Parenthood v.
ORC which justified the restrictions pertaining to Dr. O. (Planned Parenthood v. ORC,
supra, 50 Cal.App.4th at pp. 294-296.)


                                              3
Redwood City. (See Planned Parenthood Golden Gate v. Superior Court (2000) 83
Cal.App.4th 347, 351.)4
       PPGG filed a cross-complaint in the 1998 action against Foti, the Garibaldis and
others alleging interference, harassment, emotional distress, abuse of process, false arrest,
defamation and conspiracy. (Planned Parenthood Golden Gate v. Superior Court, supra,
83 Cal.App.4th at p. 351.) PPGG alleged that the cross-defendants habitually harassed
and intimidated Planned Parenthood employees, volunteers, patients and their
companions while protesting at Planned Parenthood clinics. (Ibid.)
       While the parties were attempting to negotiate a settlement of the 1998 action, a
dispute arose as to whether the 1995 injunction applies to Foti and the Garibaldis. This
dispute became a “major sticking point” in the negotiations. To resolve this dispute, the
parties agreed that (1) proceedings in the 1998 action would be stayed and (2) PPGG
would file a new complaint to determine whether the 1995 injunction applied to Foti and
the Garibaldis.
       On December 20, 2000, the parties presented their stipulation to the Honorable
John W. Runde. Pursuant to that stipulation, the superior court stayed the trial in the
1998 action, which had been set for January 8, 2001, “pending the filing . . . and
disposition of the new lawsuit.”
C.     The Present Action
       On February 16, 2001, PPGG filed a complaint for declaratory relief against Foti
and the Garibaldis. PPGG alleged that defendants were served with the 1995 injunction
but “continue to demonstrate, picket and distribute literature on and within fifteen feet of
the [San Mateo] Clinic property and also enter and obstruct the free and direct passage of
people into and out of the Clinic.” PPGG also alleged, on information and belief, that
defendants act in concert and participation with ORC when conducting their




4
       In Planned Parenthood Golden Gate v. Superior Court, supra, 83 Cal.App.4th
347, this court resolved a discovery dispute that arose in the 1998 action.


                                             4
demonstration activities. PPGG sought a declaration that “defendants are bound by the
[1995] Injunction and must therefore comply with its terms or face contempt.”
       On May 8, 2001, the Garibaldis filed motions to strike PPGG’s complaint pursuant
to the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). The
Garibaldis argued the complaint should be stricken because it lacks merit and was
“brought solely for the purpose of interfering with the valid exercise of the [Garibaldis’]
constitutional rights to freedom of speech.” A hearing on the motions to strike was held
on May 25, 2001, before the Honorable George A. Miram. In an order filed June 26,
2001 (the June 26 order), the court denied the Garibaldis’ motions to strike.
       On January 18, 2002, PPGG filed a motion for summary judgment. It argued that
Foti and the Garibaldis are subject to the 1995 injunction as a matter of law because
undisputed facts show that they act in concert with each other and in concert or
participation with ORC and Cochran in conducting their demonstration activities at the
San Mateo clinic. PPGG also argued that the 1995 injunction applies to all persons with
actual notice of it and that undisputed facts establish that Foti and the Garibaldis have
notice of the 1995 injunction. On March 4, 2002, a hearing on the summary judgment
motion was held before the Honorable Joseph Bergeron. On March 5, the court filed an
order granting PPGG’s motion for summary judgment (the March 5 order). Judgment
was entered on March 22, 2002.
                                   III.    DISCUSSION
A.     Summary Judgment
       1.     Standard of review and issues presented
       “A motion for summary judgment must be granted if all of the papers submitted
show ‘there is no triable issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.’” (Scheiding v. Dinwiddie Construction Co. (1999) 69
Cal.App.4th 64, 69 (Scheiding).) “A motion for summary judgment must be denied if the
moving papers show there is a triable issue of fact. [Citation.] In ruling on the motion, a
court must consider both the evidence ‘and all inferences reasonably deducible from the
evidence . . . .’ (Code Civ. Proc., § 437c, subd. (c).) The moving party’s evidence must


                                               5
leave no room for conflicting inferences as to material facts. ‘[S]ummary judgment shall
not be granted . . . based on inferences reasonably deducible from the evidence, if
contradicted by other inferences or evidence, which raise a triable issue as to any material
fact.’ (Code Civ. Proc., § 437c, subd. (c).)” (KOVR-TV, Inc. v. Superior Court (1995) 31
Cal.App.4th 1023, 1027-1028.)
       “The trial court’s summary judgment rulings are subject to de novo review.
[Citation.]” (Scheiding, supra, 69 Cal.App.4th at p. 69.) We view the evidence in a light
favorable to appellants, we liberally construe appellants’ evidentiary submission while
strictly scrutinizing respondent’s evidence, and we resolve any evidentiary doubts or
ambiguities in appellants’ favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th
763, 768-769.)
       In the present case, the trial court granted PPGG summary judgment because it
found that Foti and the Garibaldis are bound by the 1995 injunction as a matter of law.
By its terms, the 1995 injunction applies to ORC and Cochran, the named defendants in
Planned Parenthood v. ORC, supra, 50 Cal.App.4th 290, and to two additional categories
of individuals: (1) ORC’s and/or Cochran’s “agents, employees representatives and all
persons acting in concert or participation with them or either of them” (the in concert
provision) and (2) “all persons with actual notice of this judgment” (the actual notice
provision). PPGG maintains that both of these provisions apply to Foti and the
Garibaldis as a matter of law. Appellants maintain that the actual notice provision of the
1995 injunction is unconstitutional and invalid, and that there are disputed issues of
material fact as to whether the in concert provision of the injunction applies to them. To
resolve these issues, we first consider the validity of the provision governing the reach of
the 1995 injunction. We then address the factual evidence regarding these particular
appellants.
       2.     The injunction’s “actual notice” provision is invalid
       “‘“An injunction is obviously a personal decree. It operates on the person of the
defendant by commanding him to do or desist from certain action.”’ [Citation.]” (People
ex rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 765 (Kothari).) Indeed it may


                                             6
“deprive the enjoined parties of rights others enjoy precisely because the enjoined parties
have abused those rights in the past.” (People v. Conrad (1997) 55 Cal.App.4th 896, 902
(Conrad).) Thus, it is well established that “injunctions are not effective against the
world at large. [Citations.]” (Kothari, supra, 83 Cal.App.4th at p. 765; see also Conrad,
supra, 55 Cal.App.4th at p. 902.) On the other hand, the law recognizes that enjoined
parties “may not nullify an injunctive decree by carrying out prohibited acts with or
through nonparties to the original proceeding. [Citations.]” (Conrad supra, 55
Cal.App.4th at p. 902.) Thus, an injunction can properly run to classes of persons with or
through whom the enjoined party may act. (Ross v. Superior Court (1977) 19 Cal.3d
899, 906; Conrad, supra, 55 Cal.App.4th 902-903.) However, “a theory of disobedience
of the injunction cannot be predicated on the act of a person not in any way included in
its terms or acting in concert with the enjoined party and in support of his claims.”
(Berger v. Superior Court (1917) 175 Cal. 719, 721; see also In re Berry (1968) 68
Cal.2d 137, 155-156 & fns. 13-14.)
       These legal principles establish that the actual notice provision in the 1995
injunction is not enforceable. “[P]ersonal jurisdiction and notice are not enough to
subject a person to the restraint of an injunction. The order must be directed against that
person, either by naming that person as an individual or by designating a class of persons
to which that person belongs. [Citations] [¶] If the person charged with violation was
neither named in the injunction individually or as a member of a class, nor as aiding or
abetting a person so included, he cannot be brought within the prohibition merely by
being served with a copy of the writ. [Citation.]” (6 Witkin, Cal. Procedure (4th ed.
1997) Provisional Remedies, § 391, p. 318.)5



5
       To support its contention that actual notice is the only prerequisite for imposing an
injunction against “someone,” PPGG cites cases involving substantially different factual
and legal circumstances. (See Ex parte Lennon (1897) 166 U.S. 548, 554; U.S. v. Hall
(5th Cir. 1972) 472 F.2d 261, 267; U.S. v. Baker (9th Cir. 1981) 641 F.2d 1311, 1315;
Mechanic v. Gruensfelder (Mo.App. 1970) 461 S.W.2d 298, 307.) We will not discuss
these cases individually since PPGG chose not to. Suffice to say, that none of them

                                             7
       PPGG argues that the 1995 injunction, “including the actual notice provision, was
previously affirmed by this Court.” This court has never previously reviewed the 1995
injunction. Division Three of this District decided the appeal filed by ORC and Cochran
in Planned Parenthood v. ORC, supra, 50 Cal.App.4th 290. In that case, Cochran
argued, among other things, that the actual notice provision rendered the 1995 injunction
constitutionally overbroad. The court rejected this argument on the ground that Cochran
was a party who was specifically named in the injunction and therefore lacked standing to
object to the actual notice provision. (Id. at p. 304.) Thus, the Planned Parenthood v.
ORC court did not offer any opinion as to the validity of the actual notice provision of the
1995 injunction.
       PPGG contends the “actual notice provision is an indispensable tool to effectuate
the court’s power to grant equitable relief among all parties affected by the intense
emotions surrounding the abortion debate.” In fact, the actual notice provision is
inconsistent with the very nature and purpose of injunctive relief because it purports to
extend a remedy beyond the context of the specific dispute which justifies that remedy.
“An injunction, by its very nature, applies only to a particular group (or individuals) and
regulates the activities, and perhaps the speech, of that group. It does so, however,
because of the group’s past actions in the context of a specific dispute between real
parties. The parties seeking the injunction assert a violation of their rights; the court
hearing the action is charged with fashioning a remedy for a specific deprivation, not
with the drafting of a statue addressed to the general public.” (Madsen v. Women’s
Health Center, Inc. (1994) 512 U.S. 753, 762 (Madsen).)
       The intensity of the “abortion debate” does not somehow entitle PPGG to broader
relief than parties seeking equitable relief in other contexts. If anything, the opposite is
true. “As a general matter, . . . protestors enjoy full constitutional protection for the
expression and communication of their views concerning the public issue of abortion.


affirmed a provision which extended the scope of a permanent injunction to any person
with notice of it.


                                               8
[Citation.] This is particularly true when these protected activities occur on the public
streets and sidewalks, traditionally viewed as the quintessential public forum. [Citation.]
An injunction curtailing protected expression will be upheld only if the challenged
provisions of the injunction burden no more speech than necessary to serve a significant
governmental interest. [Citation.]” (Planned Parenthood v. ORC, supra, 50 Cal.App.4th
at p. 299.) The actual notice provision cannot satisfy this requirement; because it
purports to enjoin all demonstrators in addition to the enjoined parties, the restriction is
overbroad on its face. (See, e.g., In re Berry, supra, 68 Cal.2d at pp. 155-156 [provision
extending scope of injunction to persons “wholly unaffiliated” with named parties is
unconstitutionally vague and over-broad].)
       PPGG argues that, without the actual notice provision, one anti-choice protestor
can simply be replaced with another and avoid the reach of the injunction. But anti-
choice protestors are not fungible. A “‘mutuality of purpose’ is not enough” to bind non-
parties to an injunction restricting demonstration activity at an abortion clinic; “it must be
[their] actual relationship to an enjoined party, and not their convictions about abortion,
that make them contemnors.” (Conrad, supra, 55 Cal.App.4th at p. 903.) Put another
way, if we permit PPGG to utilize an actual notice provision to obtain injunctive relief
against all anti-abortion protestors, the injunction would be content-based and virtually
impossible to justify under current First Amendment jurisprudence. (See Madsen, supra,
512 U.S. at pp. 762-763; Planned Parenthood Shasta-Diablo, Inc v. Williams (1995) 10
Cal.4th 1009, 1019-1020 (Williams).)6
       PPGG’s legitimate concern that an enjoined party might attempt to undermine the
effect of an injunction by enlisting the aid of a nonparty can be adequately addressed by a
provision extending the reach of the injunction to agents, employees and those who act in

6
       These same considerations undermine PPGG’s argument that appellants can be
subject to the 1995 injunction as members of the class that was intended to be restrained.
To make this argument, PPGG misconstrues the language of the actual notice provision
as applying to a class consisting of all anti-abortion protestors with notice. Such a
provision, had it been included in the 1995 injunction, would have been constitutionally
invalid.


                                              9
concert with an enjoined party. The 1995 injunction contains such a provision. That in
concert provision ensures that “a nonparty to an injunction is subject to the contempt
power of the court when, with knowledge of the injunction, the nonparty violates its
terms with or for those who are restrained.” (Conrad, supra, 55 Cal.App.4th at p. 903.)
       PPGG argues the actual notice provision should be approved as a time-saving
device. According to PPGG, requiring it to litigate with appellants in order to obtain
injunctive relief against them would be a waste of time because: (1) the restrictions
imposed by the 1995 injunction were expressly approved in Planned Parenthood v.
ORC.; (2) “the behavior of each, individual protestor is not determinative of the ultimate
remedy” to which PPGG is entitled; and (3) a separate trial “will not produce different
injunctive relief.” Virtually every prong of this argument is erroneous.
       First, the Planned Parenthood v. ORC court affirmed in part and reversed in part
the judgment imposing the 1995 injunction against ORC and Cochran. (50 Cal.App.4th
290.) The court upheld a restriction which precluded appellants from demonstrating
within 15 feet of the San Mateo clinic (the 15 foot exclusion zone provision). (Id. at p.
299-300.) However it found that other provisions of the 1995 injunction were overbroad
and unconstitutional because they burdened more of the defendants’ speech than was
justified by the evidence. (Id. at pp. 301-304.)
       Second, although the Planned Parenthood v. ORC court upheld the 15-foot
exclusion zone provision, it did not, as PPGG intimates, approve that provision against all
protestors who demonstrate at the San Mateo clinic. In reaching its decision, the court
expressly acknowledged this restriction affected the constitutionally protected speech
rights of appellants in that case; its practical effect was that those appellants had to stay
off the public sidewalk at the front of the clinic and to move either to the sides or across
the street. (Planned Parenthood v. ORC, supra, 50 Cal.App.4th at p. 300.) Nevertheless,
the court found the restriction was justified as to those appellants because there was
evidence that (1) they actually obstructed access to the clinic and intimidated patients; (2)
they had violated a less restrictive exclusion provision imposed by a prior injunction; and
(3) they could easily be seen and heard from across the street. (Id. at pp. 300-301.) Thus,


                                              10
“inclusion of all the sidewalk fronting the clinic property within the 15-foot exclusion
zone” did not burden “more speech than was necessary to prevent intimidation and
permit access.” (Id. at p. 301.)
       As the appellate decision in Planned Parenthood v. ORC illustrates, the behavior
of the individual protestors and/or the specific groups against whom an injunction is
sought clearly is determinative of the ultimate remedy. (50 Cal.App.4th 290.) In that
case, evidence regarding the defendants’ actual protest activities at that clinic and the
adverse effect those activities had on legitimate state interests justified the 15 foot
exclusion zone provision as a restriction that burdened no less of the defendants’ speech
than was necessary. This evidence was necessary to affirm the judgment against Cochran
and ORC.
       Third, PPGG’s conclusion that a separate trial “will not produce different
injunctive relief” is apparently based on the mistaken notion that the state’s interests in
regulating anti-abortion protest activity are so strong that restrictions like the 15-foot
exclusion zone imposed by the 1995 injunction can and should be applied to all anti-
abortion protestors as a matter of course.
       Clearly,“[t]he state has strong concerns in: (1) protecting the freedom of women
to seek lawful services in connection with pregnancy, (2) the delivery of those services
with appropriate privacy, (3) preserving public safety and order by ensuring the free flow
of vehicular and pedestrian traffic, and (4) preserving property rights.” (Planned
Parenthood v. ORC, supra, 50 Cal.App.4th at p. 299, citing Madsen, supra, 512 U.S. at
pp. 767-768, and Williams, supra, 10 Cal.4th at pp. 1017, 1020-1023.) However, simply
articulating these interests, as PPGG has done here, does not answer whether a particular
restriction violates a particular individual’s First Amendment rights. To answer that
question, the court must engage in a fact-specific inquiry in order to ensure that the
challenged restriction does not burden more speech than necessary to serve a significant
government interest. (Planned Parenthood v. ORC, supra, 50 Cal.App.4th at p. 299;
Madsen, supra, 512 U.S. at p. 765; Schenck v. Pro-Choice Network of Western New York
(1997) 519 U.S. 357, 374.) The outcome of that inquiry certainly does depend on the


                                              11
specific behavior of the individual(s) against whom the restriction is imposed.7 PPGG
argues that the actual notice provision in the 1995 injunction is analogous to the
restriction approved by the United States Supreme Court in Hill v. Colorado (2000) 530
U.S. 703 (Hill). Hill involved a First Amendment challenge to a provision in a Colorado
statute that regulates speech-related conduct within 100 feet of the entrance to any health
care facility. (Id. at p. 708.) The 1995 injunction is not analogous to the Colorado statute
at issue in Hill. As noted above, injunctions are not effective against the world at large.
“This is not just because the world at large is not fairly deemed likely to abuse
constitutional rights; it is also because injunctions are fashioned and enforced without the
safeguards that attend the passage and govern the enforcement of more general
prohibitions.” (Conrad, supra, 55 Cal.App.4th at p. 902.) Injunctions “carry greater
risks of censorship and discriminatory application than do general ordinances.” (Madsen,



7
        People Ex Re. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna), does not support
PPGG’s argument to the contrary. The Acuna court rejected various challenges to
provisions in a preliminary injunction that was entered against individual members of an
alleged street gang who were sued for violating the state’s public nuisance statutes. (Id.
at p. 1100.) That preliminary injunction, which precluded named individuals from
engaging in specific activities in a designated neighborhood did not contain a provision
extending its scope to any person with notice.
         Moreover, the Acuna court’s analysis is fundamentally inconsistent with PPGG’s
arguments in this case. (Acuna, supra, 14 Cal.4th 1090.) For example, the court found
the preliminary injunction at issue in that case was not overbroad within the meaning of
the First Amendment because “[t]he only individuals subject to the trial court’s
interlocutory decree . . . are named parties to this action . . . .” (Id. at p. 1114.) The court
also found that the injunction did not infringe the defendants’ constitutionally protected
associational interests because the evidence of the gang members’ activities established
that the restrictions burdened no more speech than necessary to serve a significant
governmental interest. (Id. at p. 1120.) Finally, the Acuna court found the preliminary
injunction could properly have been entered against the gang as a group or against the 38
individual defendants who were members of that gang. As the court explained, “there
was sufficient evidence . . . that the gang and its members . . . were responsible for the
public nuisance, that each of the individual defendants either admitted gang membership
or was identified as a gang member, and that each was observed by police officials in
the . . . neighborhood” where the challenged activities had occurred. (Id. at p. 1125.) In

                                              12
supra, 512 U.S. at p. 764.) Furthermore, an injunction is a “judicial remed[y] tailored to
specific circumstances rather than ‘a legislative choice regarding the promotion of
particular societal interests.’” 8 (Williams, supra, 10 Cal.4th at p. 1017, quoting Madsen,
supra, 512 U.S. at p. 764.) In light of these fundamental distinctions between legislation
and injunctions, PPGG’S reliance on Hill is misplaced.
       PPGG’s final contention is that this court should enforce the actual notice
provision because it effectuates one of the basic policies underlying injunctive relief -- to
prevent a multiplicity of judicial proceedings. The policy against multiplicity of judicial
proceedings is intended to prevent conflicting or vexatious litigation. “Where there exists
two or more actions involving the same subject matter or the same facts or principles,
restraint is necessary to prevent a multiplicity of judicial proceedings. [Citation.]
Restraint is also necessary to avoid unseemly conflict between courts that might arise if
they were free to make contradictory decisions relating to the same controversy.”
(Rynsburger v. Dairymen’s Fertilizer Co-op, Inc. (1968) 266 Cal.App.2d 269, 279, citing
Scott v. Industrial Acc. Commission (1956) 46 Cal.2d 76, 81-82; see also Code Civ.
Proc., § 526, subd. (a)(6).) This policy is not effectuated by the actual notice provision
which purports to bind a nonparty to a judgment which abridges the free exercise of
speech in a public forum solely on the basis that the nonparty has notice of the judgment.
Absent evidence that Foti and the Garibaldis act together with or on behalf of parties
enjoined by the 1995 injunction, the controversy between these appellants and PPGG
does not involve the same parties, subject matter, or facts which supported the judgment
pursuant to which the 1995 injunction was entered.




light of these rulings, we are very puzzled by PPGG’s decision to rely on Acuna in this
case.
8
       For these reasons, a different and more stringent test is utilized to determine
whether an injunction violates the First Amendment. A time, place and manner
regulation is constitutional if it is narrowly tailored to serve a significant governmental
interest. A content neutral injunction is evaluated to determine “‘whether the challenged
provisions of the injunction burden no more speech than necessary to serve a significant

                                             13
       For all of these reasons, we hold the actual notice provision does not bind Foti and
the Garibaldis to the 1995 injunction. Actual notice of an injunction is a requirement but
cannot be an independent ground upon which to apply an injunction to a nonparty.
Therefore, the 1995 injunction applies to the defendants against whom it was entered
(ORC and Cochran) and their agents, employees, representatives and all persons acting in
concert or participation with them, or either of them who have actual notice of the
judgment.
       3.     There are Triable Issues Regarding Application of the “In Concert”
              Provision
       In its March 5 order, the trial court made three factual findings to support its
conclusion that the 1995 injunction applies to appellants as a matter of law: (1) Foti acts
in concert or participation with ORC and Cochran in conducting his protest activities at
the San Mateo clinic; (2) the Garibaldis act in concert or participation with ORC through
their activities with Foti; and (3) Foti and the Garibaldis have actual knowledge of the
1995 injunction.
              a.     Appellants’ activities at the San Mateo clinic
       The following facts are undisputed: In late 1997 or early 1998, Foti and the
Garibaldis began to regularly demonstrate outside the San Mateo clinic. While
demonstrating at the San Mateo clinic, Foti and the Garibaldis routinely display large
graphic signs and distribute anti-abortion literature. They frequently demonstrate on the
sidewalk directly adjacent to the clinic within 15 feet of the property line. Foti and the
Garibaldis socialize together and engage in protest activity together on a weekly basis at
the San Mateo clinic and twice weekly at Planned Parenthood’s Redwood City clinic.
The three have also protested together in San Jose. In describing these joint activities,
Foti testified that “[a]nyplace that I go, they go.” A copy of the 1995 injunction has been
served on Foti several times. The Garibaldis were served with a copy of the 1995
injunction in January 2001.

government interest.’” (Williams, supra, 10 Cal.4th at p. 1017, quoting Madsen, supra,
512 U.S. at p. 765.)


                                             14
       This undisputed evidence establishes that appellants have notice of the 1995
injunction and that they act in concert or participation with each other when they
demonstrate outside the San Mateo clinic. However, and as previously discussed, to
support summary judgment the record must also establish that appellants demonstrate at
the San Mateo clinic with or on behalf of ORC and/or Cochran.
       There is no direct evidence that appellants or any of them conduct their activities
in concert or participation with either Cochran or ORC. There is no evidence that Foti or
the Garibaldis expressly represent Cochran or ORC or that any of these appellants has
ever identified himself or herself as a member of ORC. Nor is there any evidence that
Cochran or ORC currently participate in the demonstration activities that Foti and the
Garibaldis conduct at the San Mateo clinic. In fact, it is undisputed that Cochran moved
his group of ORC demonstrators off the sidewalk in front of the San Mateo clinic before
appellants began demonstrating at that location.
              b.     Foti’s relationship to the enjoined parties
       PPGG has attempted to fill the void in its case against appellants with
circumstantial evidence of interactions and connections between Foti and ORC and
Cochran. This evidence falls into three general categories. First, Foti has previously
received newsletters from ORC, donated money to ORC, and attended ORC
demonstrations. Second, Foti knows or has known individuals who are members of
ORC. Third, Foti currently receives newsletters and sends donations to an organization
called Operation Rescue West. We shall separately consider these three categories of
evidence.
       Foti has received ORC newsletters in the past. Between 1992 and 1995, Foti
donated a total of $160 to ORC. In 1992 or 1993, Foti attended an ORC “rescue” at
Choice Medical Clinic in Santa Rosa. Foti testified at his deposition that he went to the
ORC demonstration in Santa Rosa as an observer but did not participate in the blockade.
Foti also filed a declaration in which he stated that, after witnessing the ORC blockade in
Santa Rosa, he decided not to participate in ORC demonstrations because he disapproved
of their tactics and believed he “could do more good by my lawful activity than by


                                            15
blocking a clinic and getting arrested.” In July 1993, Foti attended a demonstration at the
San Mateo clinic during which ORC members created a blockade which required police
intervention. Gabriella Gibson, a nurse employed by PPGG, saw Foti talk with Cochran
at the July 1993 protest at the San Mateo Clinic.9 In his declaration, Foti stated that he
went to the San Mateo clinic that day to demonstrate on his own, he did not know ORC
had planned a protest for that day, and he did not participate in the ORC demonstration.
Foti’s testimony was supported by a photograph upon which PPGG relies. A newspaper
article about the July 1993 protest contained a photograph of Foti which was
accompanied by a caption containing the following quotation: “I just happened to be
here. I’m a volunteer sidewalk counselor. I’m here to protect and defend the innocent
and defenseless.”
       This first category of evidence pertaining to Foti’s past interactions with ORC
could support an inference that Foti was a member of ORC in the past. If he was, that
membership could support another inference that Foti’s present activities are conducted
with or on behalf of ORC. However, Foti’s declaration and deposition testimony support
his contention that his prior interactions show no more than a mutuality of purpose and
do not compel the conclusion that Foti was ever a member of ORC. Since the record
supports more than one inference, there is a triable issue of material fact.
       The second category of evidence upon which PPGG relies shows that Foti knows
or has known Robert Cochran, Martin Munoz, Gary Pomeroy, Richard Carlson, and Chet
Gallagher. Foti does not dispute that these individuals are or were members of ORC.
However, the nature of Foti’s relationship with most of these individuals is not evident on
this record. In any event, the fact that Foti has met individuals associated with ORC or



9
       Gibson, a named party in the 1998 action, filed a declaration which PPGG
repeatedly cites as evidence supporting the summary judgment. However, PPGG fails to
acknowledge that the trial court sustained numerous objections to several of Gibson’s
assertions. PPGG also relies on numerous copies of photographs and newspaper articles
attached to Gibson’s declaration. However, many of these documents are not labeled and
others are illegible.


                                             16
even that he is friends with some of them does not compel the conclusion that Foti is a
member of that organization.
       PPGG’s third category of evidence shows that Foti currently receives newsletters
from and gives financial support to an organization called Operation Rescue West.
Between 1996 and 2001, Foti sent forty checks to Operation Rescue West. Each check
was for an amount between $10 and $20. PPGG asserts this evidence establishes that
Foti acts in concert with ORC because Operation Rescue West is the successor entity of
ORC.
       However, PPGG’s evidence does not establish that Operation Rescue West and
ORC are the same entity. PPGG relies on an October 30, 1995, newsletter entitled
“Operation Rescue West -- East Vegas Nevada.” The newsletter is addressed to “friends
of Operation Rescue California.” The newsletter states that ORC had decided to decline
any donations while it pursued an appeal of a court judgment entered against it. The
newsletter asks for donations to Operation Rescue West so that it can “pick up the
banner” and lead the fight against abortion. The newsletter refers to an attached
newspaper article about the judgment against ORC. The copy of the newspaper article
contains handwritten notations and a message signed by Jeff White. According to the
article, Jeff White is the state director of ORC.
       The October 30 newsletter could be interpreted in different ways. The trier of fact
might conclude that its shows ORC now operates through Operation Rescue West. On
the other hand, it could also find that the newsletter merely shows that ORC was
attempting to develop financial support for another organization that shared its anti-
abortion views. In any event, the newsletter clearly does not establish that ORC and
Operation Rescue West are the same entity as a matter of law. Further, even if Operation
Rescue West is connected to ORC, Foti produced evidence that he gives financial support
to many organizations to which he does not belong and that he conducts his
demonstration activities at the San Mateo clinic on his own initiative because of his own
convictions. This evidence creates a triable issue of material fact as to whether Foti’s



                                             17
relationship with Operation Rescue West establishes a connection between Foti and
ORC.
       Finally, we note that Foti has stated in his sworn declaration that he conducts his
present activities at the San Mateo clinic on his “own initiative” and because of his “own
convictions” and that he has not communicated with anyone associated with ORC or any
Operation Rescue entity about his post-1997 picketing activities at the San Mateo
clinic.10 Although Planned Parenthood is entitled to dispute Foti’s words, they cannot
simply be ignored. At this stage in the proceeding, there has been no finding by a trier of
fact as to Foti’s credibility.
       The evidence in this record raises triable issues of material fact regarding the
nature of Foti’s relationship with ORC and/or Cochran. In other words, the evidence
before us does not establish that, as a matter of law, Foti conducts his demonstration
activities at the San Mateo clinic together or in concert with ORC and/or Cochran. The
trial court relied on Foti’s connection to the enjoined parties as a means by which to bind
the Garibaldis. Thus, our analysis of the evidence pertaining to Foti’s relationship with
the enjoined parties also shows that this record does not support the trial court’s
conclusion that the 1995 injunction applies to the Garibaldis as a matter of law.
       In summary, in light of (a) the standard of proof that PPGG should have been held
to in the trial court and (b) our own standard of review on appeal, we cannot affirm the
trial court’s factual findings regarding the nature of appellants’ demonstration activities
or its legal conclusion that the 1995 injunction applies to appellants as a matter of law.
B.     The Motions to Strike
       The Garibaldis also challenge the June 26 order denying their motions to strike
PPGG’s complaint pursuant to section 425.16, the anti-SLAPP statute. On appeal, the
denial of a special motion to strike under section 425.16 is subject to de novo review.
(Lam v. Ngo (2001) 91 Cal.App.4th 832, 845.)

10
      The Garibaldis also filed declarations in which both stated that they do not know
Cochran and they have never communicated with anyone at ORC or any Operation
Rescue entity about their counseling and picketing activities at the San Mateo clinic.


                                             18
       Section 425.16, subdivision (b)(1), states: “A cause of action against a person
arising from any act of that person in furtherance of the person’s right of petition or free
speech under the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.”11
       “[S]ection 425.16 requires that a court engage in a two-step process when
determining whether a defendant’s anti-SLAPP motion should be granted. First, the
court decides whether the defendant has made a threshold showing that the challenged
cause of action is one ‘arising from’ protected activity. [Citation.] If the court finds such
a showing has been made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim. [Citation.]” (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 76; see also Equilon Enterprises v. Consumers Cause, Inc. (2002) 29 Cal.4th
53; Navellier v. Sletten (2002) 29 Cal.4th 82.)
       In the present case, the trial court found that the Garibaldis waived the protection
of section 425.16 by stipulating that the present action for declaratory relief could be
filed. The Garibaldis argue that the waiver doctrine does not apply under these
circumstances. (See Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048, 1053
[abrogated by statute with regard to its construction of the Permit Streamlining Act, Stats.
1998, ch. 283, § 5].) They further contend that they carried their burden under the first
prong of the section 425.16 test of establishing that PPGG’s claim arises from protected
activity and that the trial court erred by refusing to compel PPGG to satisfy the second
prong of the section 425.16 test by demonstrating a probability of prevailing on its claim.

11
        “As used in this section, ‘act in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in connection with a public
issue’ includes: . . . (3) any written or oral statement or writing made in a place open to
the public or a public forum in connection with an issue of public interest; (4) or any
other conduct in furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue of public interest.”
(§ 425.16, subd. (e).)


                                               19
       We need not address the Garibaldis’ arguments because, even if they have merit,
the record before us establishes that PPGG has satisfied any arguable obligation it may
have in the present case to show a probability of prevailing on its declaratory relief claim.
(See Navellier v. Sletten, supra, 29 Cal.4th at p. 95 [directing court of appeal to determine
plaintiff’s probability of prevailing when anti-SLAPP motion erroneously denied under
first prong of section 425.16].)
       To satisfy the second prong of the section 425.16 test, the plaintiff “‘must “‘state[]
and substantiate[] a legally sufficient claim.’” [Citations.] Put another way, the plaintiff
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.” [Citations.]’” (Yu v. Signet Bank/Virginia (2002)
103 Cal.App.4th 298, 317.) “The process the court uses in determining the merits of the
motion is similar to the process used in approaching summary judgment motions. The
evidence presented must be admissible [citation] and the trial court does not weigh the
evidence. [Citation.] Rather, a probability of prevailing is established if the plaintiff
presents evidence establishing a prima facie case which, if believed by the trier of fact,
will result in a judgment for the plaintiff. [Citation.] If the plaintiff meets its burden, the
motion must be denied. [Citations.]” (Mattel, Inc. v. Luce, Forward, Hamilton &
Scripps (2002) 99 Cal.App.4th 1179, 1188-1189.)
       In the present case, the parties filed cross-motions for summary judgment. The
trial court denied Foti and the Garibaldis summary judgment and thereby implicitly found
that PPGG satisfied the second prong of the section 425.16 test. We agree. Our analysis
of the evidence adduced at summary judgment illustrates that PPGG has produced
sufficient evidence in support of its claim to make the prima facie showing required by
section 425.16. Although that evidence does not establish joint and/or in concert activity
as a matter of law, it is sufficient to sustain a favorable judgment if that evidence is
credited. Thus, the June 26 order denying the section 425.16 motions is affirmed.




                                              20
                                 IV.    DISPOSITION
      The June 26 order denying the motions to strike is affirmed but the summary
judgment in favor of PPGG is reversed. Foti shall recover his costs on appeal; the
Garibaldis and PPGG shall bear their own costs.




                                                  _________________________
                                                  Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Ruvolo, J.




                                           21
                    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                     DIVISION TWO


PLANNED PARENTHOOD GOLDEN
GATE,
         Plaintiff and Respondent,                 A098455, A098457, A096588

v.                                                 (San Mateo County
ROSSI FOTI, et al.,                                Super. Ct. No. 415891)
         Defendant and Appellants.


BY THE COURT:
         The written opinion which was filed on March 3, 2003, has now been certified for
partial publication pursuant to rules 976(b) and 976.1 of the California Rules of Court,
and it is therefore ordered that it be published in the Official Reports with the exception
of parts III A, 3, and III B.




Dated:     March 24, 2003                         _________________________________
                                                  Kline, P.J.




                                             22
Trial Court: Superior Court of San Mateo County
Trial Judge: Hon. Joseph Bergeron; Hon.George Miram


Attorneys for Defendant-Appellant             CatherineW.Short
Rossi Foti                                    Life Legal Defense Foundation

                                              Michael Millen

Attorney for Defendant-Appellant
Jeanette Garibaldi, et al.                    Terry L. Thompson


Attorneys for Plaintiff-Respondent            Beth H. Parker
Planned Parenthood Golden Gate                Kari Lynn Krogseng
                                              Bingham McCutchen LLP


Amicus Curiae                                 Prof. Doug Rendleman
                                              Washington and Lee University
                                              School of Law




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