Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, Case No. 16-cv-00236-WHO

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtWilliam H. Orrick, United States District Judge
Citation402 F.Supp.3d 615
Decision Date23 August 2019
Docket NumberCase No. 16-cv-00236-WHO
Parties PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs, v. CENTER FOR MEDICAL PROGRESS, et al., Defendants.

402 F.Supp.3d 615

PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs,
v.
CENTER FOR MEDICAL PROGRESS, et al., Defendants.

Case No. 16-cv-00236-WHO

United States District Court, N.D. California.

Signed August 23, 2019


402 F.Supp.3d 632

Amy Lynne Bomse, Rogers Joseph O'Donnell, Sharon D. Mayo, Stephanie Ilana Fine, Tommy Huynh, Jee Young You, Arnold & Porter Kaye Scholer LLP, Julie Allison Kent, Steven Lee Mayer, Arnold and Porter LLP, San Francisco, CA, Beth Harrison Parker, Planned Parenthood Northern California, Concord, CA, Helene Krasnoff, Pro Hac Vice, Planned Parenthood Federation of America, Meghan C. Martin, Arnold and Porter LLP, Washington, DC, Joseph G. Phillips, Pro Hac Vice, Arnold Porter, Denver, CO, Rhonda Renee Trotter, Oscar Daniel Ramallo, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, Diana K. Sterk, Pro Hac Vice, Arnold and Porter, Maithreyi Ratakonda, Pro Hac Vice, New York, NY, for Plaintiffs.

Charles Salvatore LiMandri, Law Offices of Charles S. LiMandri, Jeffrey Michael Trissell, Teresa Lynn Kubu Mendoza, Paul Michael Jonna, Law Offices of Charles S. LiMandri, APC, Rancho Santa Fe, CA, Denise Mayo Harle, Alliance Defending Freedom, Lawrenceville, GA, Gregory Richard Michael, Harmeet K. Dhillon, Dhillon Law Group Inc., San Francisco, CA, for Defendants.

ORDER ON PENDING MOTIONS

Re: Dkt. Nos. 595, 598, 600, 601, 602, 603, 605, 606, 609, 611, 641, 643

William H. Orrick, United States District Judge

INTRODUCTION

At the core of this case are defendants' undisputed actions in infiltrating conferences of plaintiff Planned Parenthood Federation

402 F.Supp.3d 633

of America (PPFA) and other organizations as well as two PPFA-affiliated facilities (who are also plaintiffs) and the intentional targeting of particular staff members employed by PPFA or the PPFA-affiliate plaintiffs in order to surreptitiously record conversations with the conference attendees and plaintiffs' targeted staff. Defendants contend that all of their efforts were part of the Human Capital Project (HCP or Project) "to investigate, document, and report on the procurement, transfer, and sale of aborted fetal tissue." Declaration of David Daleiden ISO MSJ (Daleiden MSJ Decl.) [Dkt. No. 609-1] ¶ 3; Declaration of David Daleiden ISO Oppo. (Daleiden Oppo. Decl.) [Dkt. No. 659-2] ¶ 3. In July 2015, the public phase of the Project began with defendants' publication of a series of curated videos, including recordings of plaintiff' staff from the conferences, from the facilities, and from lunch meetings. Daleiden MSJ Decl. ¶ 57.1

On July 17, 2019, the parties argued seven motions for summary judgment, one special motion to strike the complaint, a Daubert motion, and a motion to strike an expert. After reviewing the record laid out in the motions, certain issues are beyond dispute. Defendants set out to damage Planned Parenthood with a scheme that involved creating a phony corporation and false identities, infiltrating conferences and facilities, ignoring confidentiality agreements, and trading on relationships established under false pretenses for the purpose of secretly videotaping individuals without their consent in the hopes of getting them to make damaging statements. There are distinctions between which defendants are responsible for what acts, but there is no doubt that several defendants committed fraud, breached contracts, and trespassed at the conferences and in the Planned Parenthood facilities. However, given scope of the claims and the manner in which the issues were framed on this motion, even partial summary judgment is not feasible on most of those claims.

A harder question is to what extent Planned Parenthood was damaged by defendants' conduct. While it is beyond dispute that Planned Parenthood expended hundreds of thousands of dollars in order to protect their staff and enhance security after the publication of some of the videos that defendants took, much of that expense was incurred in anticipation of and in response to a marked increase of third-party threats and security incidents. Planned Parenthood cannot recover for reputational damages or "publication" damages under the First Amendment, but there is no bright line in the precedent establishing when a category of damages should be analyzed by proximate cause or the First Amendment.

This Order draws the line for compensable damages between those caused by defendants' direct conduct and those caused by third parties. The potentially recoverable damages are for personal security costs for individuals targeted by the defendants and for measures to investigate the intrusions and upgrade the security

402 F.Supp.3d 634

measures meant to vet and restrict future access to the conferences and facilities. Excluded are more general expenses to upgrade physical security at Planned Parenthood facilities as well as the time and expense plaintiffs incurred in responding to the threats and acts of third parties following release of the videos. This Order also addresses the myriad of other issues generated in the ten motions before me.

TABLE OF CONTENTS

I. Creation of CMP and BioMax, and Use of False Identities to Allow Defendants to Infiltrate the Conferences and Facilities...635

II. Plaintiffs' Conferences and Facilities...637

A. PPFA Conferences and Security Measures...637

B. Defendants' Infiltration of Conferences, Facilities, and Meetings...638

III. Publication of the Videos, this Lawsuit and Claims...639

I. Motions for Summary Judgment...641

A. Damages...641

B. RICO (Count 1)...647

1. RICO Predicate Acts...647

2. RICO Proximate Causation of Injury/Damage...652

3. Rhomberg, Newman, and Lopez...653

C. Breach of Contracts...655

1. Breach of PPFA Exhibitor Agreements (Count 4)...655

2. Breach of NAF Contracts (Count 5)...662

3. Breach PPCG/PPCFC Contract (Count 15)...667

4. Defendants' Public Policy Defense...670

D. Trespass (Count 6)...673

1. PPFA...674

2. Consent and Misrepresentation to Secure Access...677

3. Damages...679

4. Merritt...680

5. Rhomberg and Newman...680

E. Fraudulent Misrepresentation (Count 8)...681

1 PPPSGV...682

2. Elements of Fraudulent Misrepresentation and Framing of this Claim...682

3. Wasden ...683

4 Damages...684

5. CMP, Rhomberg, and Newman...685

6. Merritt...686

F. Illegal Recording Claims...686

1. Federal (Count 2)...686

2. Florida (Count 11)...692

3. Maryland (Count 12)...693

4. Standing and Dropped Claims...693

5. California (Counts 9-10)...694

G. Invasion of Privacy...703

1. Intrusion on a Private Place (Count 13)...703

2. California Constitution, Article I (Count 14)...707

H. Civil Conspiracy (Count 3)...708

1. Rhomberg and Newman...709

2. Lopez...709

I. Unfair Business Practices (Count 7)...710

1. Evidence of Unfair Acts...710

2. Lost Money or Property...710

3. Business Acts and Conduct Outside of California...711

4. Injunctive Relief...712

5. Rhomberg, Newman, Merritt, and Lopez...712
402 F.Supp.3d 635

J. Defendants' Unclean Hands Affirmative Defense...713

II. Defendants' Anti-Slapp Motion...714

III. Defendants' Motion to Exclude Cohen...716

A. Advocate-Witness Rule...717

B. FRE 702...718

1. Methodology...718

2. Sufficient Data...719

3. Application of Theory to Data...720

4. Confusing and Prejudicial...720

IV. Motion to Strike...721

V. Motions to Seal...726

BACKGROUND

I. CREATION OF CMP AND BIOMAX, AND USE OF FALSE IDENTITIES TO ALLOW DEFENDANTS TO INFILTRATE THE CONFERENCES AND FACILITIES

Defendant David Daleiden established the Center for Medical Progress (CMP) in 2013 for the "purpose of monitoring and reporting on medical ethics and advances, with a special focus on contemporary bioethical issues that impact human dignity, such as induced abortion and aborted fetal tissue and organ harvesting." Daleiden MSJ Decl. ¶ 2.2 He invited defendants Troy Newman and Albin Rhomberg to be directors. Declaration of David Daleiden April 16, 2019 (Daleiden Depo. I, Declaration of Diana Sterk ISO MSJ (Sterk Decl.), Ex. 8) at 109-110. In March 2013, Newman, Daleiden, and Albin Rhomberg formed CMP as a California not-for-profit corporation. Daleiden Depo. I at 180:25-182:10. Daleiden was CMP's CEO and Director. Id. Application of CMP to California Secretary of State & Articles of Incorporation (CMP AoI), Ex. 15 to Sterk Decl. [Dkt. No. 607]; Declaration of David ISO Anti-SLAPP Motion (Daleiden Anti-SLAPP Decl. [Dkt. No. 600-2] ) ¶ 2. Newman was the Secretary of CMP.3 CMP AoI, NAF0001805. Rhomberg was the CFO. CMP AoI NAF0001805; Deposition of Albin Rhomberg March 14, 2019 (Rhomberg Depo. I, Sterk Decl., Ex. 14) at 115:9-20. Newman, Daleiden, and Rhomberg each served on CMP's board. CMP AoI, NAF0001804, 1805; Rhomberg Depo. I at 115:9-20.4

Through CMP, Daleiden inaugurated HCP in 2013 in order to "investigate, document, and report on the...

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3 practice notes
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    ...as those of the corporation alone, an inequitable result will follow." Planned Parenthood Fed'n of Am., Inc. y. Ctr. for Med. Progress, 402 F.Supp.3d 615, 661 (N.D. Cal. 2019) (citing Say & Say, Inc. v. Ebershoff, 25 Cal.Rptr.2d 703 (Cal.App. 2d Dist. 1993)). The second factor must be pled ......
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    ...subsequent broadcast are generally not allowed under the statute." Planned Parenthood Fedn. of Am., Inc. v. Ctr. for Med. Progress, 402 F. Supp. 3d 615, 694 (N.D. Cal. 2019)(internal citations omitted). Match has sufficiently stated a cause of action and counterclaim for violation of Sectio......
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    ...subsequent broadcast are generally not allowed under the statute." Planned Parenthood Fedn. of Am., Inc. v. Ctr. for Med. Progress, 402 F. Supp. 3d 615, 694 (N.D. Cal. 2019)(internal citations omitted). Match has sufficiently stated a cause of action and counterclaim for violation of Sectio......
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    • United States
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    • June 1, 2020
    ...subsequent broadcast are generally not allowed under the statute." Planned Parenthood Fedn. of Am., Inc. v. Ctr. for Med. Progress, 402 F. Supp. 3d 615, 694 (N.D. Cal. 2019)(internal citations omitted). Match has sufficiently stated a cause of action and counterclaim for violation of Sectio......
  • Rad v. IAC/InterActiveCorp, INDEX NO. 654038/2018
    • United States
    • United States State Supreme Court (New York)
    • June 1, 2020
    ...subsequent broadcast are generally not allowed under the statute." Planned Parenthood Fedn. of Am., Inc. v. Ctr. for Med. Progress, 402 F. Supp. 3d 615, 694 (N.D. Cal. 2019)(internal citations omitted). Match has sufficiently stated a cause of action and counterclaim for violation of Sectio......

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