Metropolitan News-Enterprise


Tuesday, March 25, 2003


Page 1


Court of Appeal Limits Injunction Against Abortion Clinic Picketing


By KENNETH OFGANG, Staff Writer/Appellate Courts


An injunction that restricted Operation Rescue picketing of a Bay Area Planned Parenthood clinic is invalid to the extent it restrains non-parties solely on the basis of their having actual notice of the order, the First District Court of Appeal has ruled.

In a March 3 ruling, certified yesterday for partial publication, Div. Two said the scope of an injunction is necessarily limited to parties to the underlying suit and to those shown to have been acting with or on behalf of a party

The court sent the action by Planned Parenthood Golden Gate back to the San Mateo Superior Court for a determination of whether Rossi Foti and Jeannette and Louie Garibaldi have been acting in concert or participation with Operation Rescue of California and/or Operation Rescue leader Robert Cochran in connection with picketing and other activities outside the Planned Parenthood clinic in San Mateo.

The suit grows out of 15 years of protests outside the clinic, activities that led to a suit by Planned Parenthood against Operation Rescue and Cochran in 1993.

That suit resulted in a 1995 injunction barring the defendants, as well as “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” from picketing or leafleting within 15 feet of the clinic or engaging in other specified activities.

A 1996 Court of Appeal affirmed the 15-foot buffer zone, but struck down some of the other provisions of the order.

Suit Filed

In 1998, Foti—who had been picketing and leafleting outside Planned Parenthood Golden Gate clinics in San Mateo, Menlo Park, and Redwood City for a number of months—sued Planned Parenthood, claiming he had been defamed, battered, and denied his constitutional right to leaflet, picket, and counsel.

Planned Parenthood responded with a cross-complaint against Foti and the Garibaldis, among others, claiming that they were harassing employees, volunteers, and patients during their protests.

The parties tried to settle, but the negotiations got hung over whether Foti and the Garibaldis were bound by the injunction, so it was agreed that the suit would be stayed while Planned Parenthood brought a declaratory action to resolve that issue.

Judge Joseph Bergeron granted summary judgment to Planned Parenthood, concluding that the defendants had actual notice of the injunction and that they were acting in concert with Cochran and Operation Rescue.

But Justice Paul Haerle, writing for the Court of Appeal, agreed with the defendants that the “actual notice” provision was “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.”

Mere “mutuality of purpose” with a named defendant is not enough to subject someone to an injunction, the jurist said. “Put another way,” Haerle said, “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.”

Planned Parenthood argued that the injunction would be rendered meaningless without the provision, but Haerle disagreed. The application of the injunction to representatives and agents of the named defendants, and persons acting in concert with them, is sufficient to prevent them from evading the injunction simply by recruiting new protesters, the justice reasoned.

Unpublished Part

In an unpublished portion of his opinion, Haerle said there was a triable issue as to whether Foti and the Garibaldis had acted in concert with Operation Rescue and Cochran.

He cited Foti’s declaration that he had recruited the Garibaldis and that he acted independently of Operation Rescue, attending demonstrations on his own initiative because of his beliefs. The fact that Foti had received some newsletters from Operation Rescue, donated about $160 to them over a three-year period, knew Cochran and other members, and attended demonstrations that they sponsored was not sufficient to support summary judgment, the justice said.

“Although Planned Parenthood is entitled to dispute Foti’s words, they cannot simply be ignored,” Haerle wrote. “At this stage in the proceeding, there has been no finding by a trier of fact as to Foti’s credibility.”

The case is  Planned Parenthood Golden Gate v. Foti, 03 S.O.S. 1508.


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