Chico Feminist Women's Health Center v. Scully

• Decision Date: 28 February 1989
• Docket Number: No. C000584,C000584
• Court: California Court of Appeals Court of Appeals
• Parties: CHICO FEMINIST WOMEN'S HEALTH CENTER, Plaintiff and Appellant, v. Frances SCULLY et al., Defendants and Appellants.

Page 194

256 Cal.Rptr. 194

208 Cal.App.3d 230

CHICO FEMINIST WOMEN'S HEALTH CENTER, Plaintiff and Appellant, v. Frances SCULLY et al., Defendants and Appellants.

No. C000584.

Court of Appeal, Third District, California.

Feb. 28, 1989.

As Modified March 3, 1989.

Paul T. Persons, Cathleen A. Williams and Kanter, Merin, Dickstein & Kirk for plaintiff and appellant.

Paul J. Henry, Lawrence A. Fuqua, Lawrence A. Puritz, Matthews, Fuqua & Puritz, Larry L. Crain and John W. Whitehead for defendants and appellants.

SIMS, Associate Justice.

The Chico Feminist Women's Health Center (Center) operates a clinic in the City of Chico where abortions are performed. The Center moved to amend a preliminary injunction by obtaining an additional injunctive order excluding defendants, citizens of Chico who have picketed the Center, from "any vantage point from which clients entering the [clinic] can be identified" on Saturdays when abortions are performed. The prohibited vantage points would include the public streets and sidewalks immediately in front of the Center. The Center argued that by being present in the vicinity of the Center, defendants could learn the identity of those obtaining abortions, thereby violating the rights of privacy of clients who obtained abortions and "chilling" the rights of others who would obtain abortions but for the disclosure of their identities.

The trial court refused the requested order but amended the preliminary injunction by adding several orders, one of which provided, "No picketer shall identify or disclose the identity of any person approaching, entering, or leaving the ... Center ... or harass any person in this fashion." Both the Center and defendants have appealed from the order modifying the preliminary injunction.

We hold that the trial court did not abuse its discretion in refusing to enter the injunctive order sought by the Center. We also modify the amending orders to eliminate defendants' complaint of uncertainty. However, we hold that defendants' attempt to challenge orders in the original preliminary injunction is an untimely appeal which must be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

In November 1985 anti-abortion picketing began on the sidewalk outside the Center on Saturdays when abortions were performed. This picketing generated approximately 40 written complaints from Center clients regarding harassment by picketers.

This harassment typically consisted of the following: As clients arrived at the Center picketers would rush up to their cars. Picketers would shout at clients, attempt to stop them on the sidewalk, thrust pamphlets at them, photograph them, and record their vehicle license plate numbers. Clients would be forced to pass through or around the picketers in order to enter the Center.

One result of this activity, according to the Center's medical director, was that clients were delaying their abortions until later in the term when the operation is riskier. A second result was that clients would arrive for their operations in a heightened emotional state and would have a difficult time relaxing. To help clients relax, the medical director would have to administer increased medications compounding the health risk to the clients.

The Center responded to the picketing by assembling a team of volunteer escorts to accompany clients from their cars to the Center and back again. The escorts would use umbrellas to attempt to shield clients' faces from the picketers' cameras.

In December 1985, the Center petitioned for a temporary restraining order and preliminary and permanent injunctions; the trial court refused to enter a temporary restraining order but issued an order to show cause. Following a hearing, the trial court on February 27, 1986, issued an order "[D]efendants ... and their officers, agents, representatives, employees and members, and each of them, and each and every person acting at the direction of, or in combination or in concert with said defendants be, and hereby are, restrained and enjoined from doing any of the acts or things herein set forth below:

granting a preliminary injunction providing in pertinent part as follows: ¹

"(1) Either the defendants or plaintiff photographing any person at or coming to or going from [the Center];

"(2) Blocking any entrance and exit into the ... Center....;

"(3) Plaintiff and defendants from shouting and/or using any voice amplification devices for the purpose of harassment, and/or demonstrating at the [Center];

"(4) Using any tape recording device or recording device in front of the ... Center....;

"(5) Following clients and/or from being within 15 feet of clients in their cars without having been invited;

"(6) Picketing, parading, marching, standing, occupying, assembling, grouping or gathering, or inducing, encouraging, or causing such conduct in the following area:

"A zone 10 feet wide from the doorway of plaintiff's premises to Flume Street. Provided however, that, defendants may cross said zone one at a time nine feet or more from the wall of the building in order to pass from one side of the sidewalk to the other; and provided, however, that defendants may maintain, under conditions herein specified, one (1) picket or other person at either side of such 10 foot zone;

"(7) Picketing, parading, marching, standing, walking, assembling, grouping, or gathering or stationing, placing or maintaining pickets within 10 feet from any other picketer. Such 10 foot distance is to be maintained by all picketers within the zone which extends 25 feet from the most northernly and most southernly point of the building...."

"(8) Accosting, addressing, or offering literature to, any employee, agent, client, visitor, business invitee of plaintiff who has already refused such offer or address;

"(9) Standing in or stepping in the path or right of way of plaintiff's employees, agents, clients, visitors, business invitees, on the west sidewalk of Flume Street between Third and Fourth Streets, Chico, California;

"(10) Recording license plates of plaintiff's employees, agents, clients, visitors, and business invitees;

"(11) Clinic may escort clients, using two escorts to the Clinic and two escorts from the Clinic. Clients may not be shielded from pickets by means of umbrellas of [sic ] otherwise unless client chooses to be shielded."

The Center served defendants notice of entry of this preliminary injunction.

Approximately one week after the injunction issued, on Saturday, March 8, 1986, picketer George W. observed client Barbara Doe enter the Center. George W., who was acquainted with Barbara Doe and her sister Kimberly Doe, apparently informed Kimberly that Barbara was present at the Center. Soon after Barbara's arrival, the Center staff informed her that a man had telephoned asking if Barbara was there. After that call, Kimberly telephoned the Center and spoke to Barbara urging her not to have an abortion. Shortly thereafter the Center staff informed Barbara that Kimberly had arrived at the Center. Barbara asked that her abortion be performed immediately. Afterward Barbara left the Center down a fire escape at the rear of the building in order to avoid a confrontation with picketers. In a declaration, Barbara stated she knew of no way As a result of this breach of client confidentiality and other alleged incidents, the Center on April 10, 1986, noticed a motion to amend the preliminary injunction to prohibit picketing at the Center from 8 a.m. until 5 p.m. on Saturdays.

Kimberly could have learned from or through her that she would be at the Center that day.

Following a hearing the trial court on April 25, 1986, issued an order providing:

"1. No picketer shall identify or disclose the identity of any person approaching, entering, or leaving the Health Center at 330 Flume Street, or harass any person in this fashion.

"2. Picketers must maintain a 10 foot distance from any other picketer at all times on Flume Street between 3rd and 4th Streets. This includes coming to or leaving the area.

"3. At no time shall there be more than 7 picketers on Flume Street between 3rd and 4th Streets in Chico, California.

"Except as amended herein, said Temporary [sic ] Injunction of February 27, 1986 and all the provisions thereof shall remain in full force and effect."

On June 4, 1986, plaintiff served a copy of this order on defendants and their counsel. On June 20, 1986, the Center filed notice of appeal from this order and on July 9, 1986, defendants also noticed an appeal from the order. ²

DISCUSSION

I The Center's Appeal

We first consider the Center's contention that the trial court should have enjoined all picketing activity on Saturdays when abortions are performed. As noted, the trial court enjoined picketers from identifying or disclosing the identity of anyone entering or leaving the Center. The Center contends, however, that its clients have a right to obtain an abortion in complete privacy and the right is destroyed whenever anyone who knows them sees them entering or leaving the Center on a Saturday. Thus, the Center claims it is entitled to an order excluding defendants from any vantage point from which they may observe clients entering or leaving the Center. For reasons that follow, we cannot agree.

A. Standard of Review

In IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 196 Cal.Rptr. 715, 672 P.2d 121, our Supreme Court summarized rules for review of a trial court's ruling on a request for a preliminary injunction: "The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court. [Citations.] As this court explained in People v. Black's Food Store, supra [1940], 16 Cal.2d at page 61 , 'The authorities are numerous and uniform to the effect that the granting or denial of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute...