McDERMOTT WILL & EMERY LLP

CHARLES E. WEIR (State Bar No. 211091)

cweir@mwe.com
GREGORY JONES (State Bar No. 229858)
gjones@mwe.com
KATE M. HAMMOND (State Bar No. 293433)
khammond@mwe.com
2049 Century Park East, Suite 3800
Los Angeles, CA 90067
Telephone:
310.277.4110
Facsimile:
310.277.4730
Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES CENTRAL DISTRICT

STEMEXPRESS, LLC et al.,

Plaintiffs,
v.
THE CENTER FOR MEDICAL
PROGRESS, BIOMAX
PROCUREMENT SERVICES, LLC,
DAVID DALEIDEN (aka ROBERT
SARKIS), DOE 1 (aka SUSAN
TENNENBAUM), and DOES 2 through
100, inclusive,
Defendants.

CASE NO. BC589145

PLAINTIFFS REPLY IN SUPPORT OF A
PRELIMINARY INJUNCTION
[SUPPLEMENTAL COMPENDIUM OF
EVIDENCE AND APPENDIX OF NONCALIFORNIA AUTHORITIES FILED
CONCURRENTLY HEREWITH; PROPOSED
PRELIMINARY INJUNCTION LODGED
CONCURRENTLY HEREWITH]
Hearing
Date:
Time:
Dept:
Judge:

August 21, 2015

9:30 a.m.
86
Hon. Joanne ODonnell

PLAINTIFFS REPLY IN SUPPORT OF A PRELIMINARY INJUNCTION

I.

INTRODUCTION
In opposing Plaintiffs request to conduct discovery under the anti-SLAPP statute,

Defendants argued that the preliminary injunction is an unconstitutional prior restraint of speech
and not authorized under the Invasion of Privacy Act. Plaintiffs did not have the chance to
address those arguments or demonstrate, as they do now, that Defendants misled the Court
concerning the applicable law and scope of Plaintiffs requested injunction. Plaintiffs seek a
narrow injunction prohibiting Defendants from only disseminating the fruits of their unlawful
conduct the secret video recordings of the May 22 meeting in violation of the Act. Plaintiffs do
not seek to enjoin Defendants from disclosing what was said during the meeting. This distinction
is critical both for purposes of the relief available under the Act and the constitutional
consequences of the limited injunction sought here.
First, the entire purpose of the Act is to protect an important aspect of privacy of
communication the right to control the nature and extent of the firsthand dissemination of his
statements. Ribas v. Clark, 38 Cal. 3d 355, 361 (1985) (emphasis added). Conversely, the Act
does not prohibit the disclosure of information conveyed in a private conversation. This is the
exact distinction that the court applied in Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th
156 (2003). There, the court held that while plaintiffs may not obtain damages for the disclosure
of information divulged in an illegally-recorded conversation, they may recover the recording.
The ability to recover the recording and control the manner of its dissemination goes directly to
the basic purpose of the Act. Here, Plaintiffs do not ask the Court to order the return of the illegal
recording, but merely ask the Court to block its further dissemination. Because Plaintiffs do not
seek an order barring Defendants from disclosing any underlying information from the May 22
meeting, Defendants quotation of Lieberman regarding the disclosure of information is
inapposite. The relevant portion of Lieberman is the holding that the Act allows courts to order
illegal recordings to be returned. Even if the Court concludes that this relief is not expressly
authorized by the Act, it can still enter the injunction under its broad equitable powers.
Second, the requested preliminary injunction is not an invalid prior restraint. Under

PLAINTIFFS REPLY IN SUPPORT OF A PRELIMINARY INJUNCTION

binding Supreme Court precedent, a content-neutral injunction directed at unlawful conduct that
burdens no more speech than necessary and serves a significant government interest is not an
unconstitutional prior restraint. See Madsen v. Womens Health Ctr., 512 U.S. 753, 776 (1994);
DVD Copy Control Assn., Inc. v. Bunner, 31 Cal. 4th 864, 885-889 (2003).

Defendants

completely disregard the relevant constitutional analysis. Instead, they rely on authority that is
either inapposite (e.g., cases involving content-based injunctions for defamatory speech) or
reflects a basic misunderstanding of constitutional law. Contrary to Defendants assertion, there
is no constitutional protection for disseminating unlawfully-obtained material. An injunction
prohibiting the distribution of Defendants illegal recording is constitutional.
Beyond these threshold issues, Plaintiffs evidence clearly demonstrates that they can
prevail on the merits of their claim under the Act and that the irreparable harm they face from the
release of the video clearly outweighs any harm to Defendants. Therefore, the Court should issue
a preliminary injunction prohibiting Defendants from disseminating the illegal video recordings.
II.

COURTS CAN ENJOIN THE PUBLICATION OF AN ILLEGAL RECORDING

Defendants argue that there is no the authority to issue the injunction based on a single

sentence contained in Lieberman. This argument is completely wrong, as it disregards the actual
holding in Lieberman, misconstrues the Act, and ignores the Courts broad equitable powers.
The Invasion of Privacy Act criminalizes the recording of a confidential communication
without the consent of all parties to the communication. Pen. Code 632(a). The fundamental
purpose of the Act is to protect an important aspect of privacy of communication the right to
control the nature and extent of the firsthand dissemination of his statements. Ribas, 38 Cal.
3d at 361 (emphasis added). The evil that the Act prevents is the simultaneous dissemination
of a confidential communication to an unannounced second auditor, whether that auditor be a
person or a mechanical device. Id. at 360-361. Thus, while the Act prohibits such firsthand
repetition, it does not forbid secondhand repetition, i.e., retelling what someone said during a
conversation. Id. Thus, the Act is not concerned with what someone says (the content or
information revealed during a conversation), but how and to whom they say it (the manner). The

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Supreme Court has observed that this is a substantial distinction. Id.

It is this critical distinction between the information divulged on the illegally-recorded
conversation and the recording itself that Defendants ignore.

Lieberman recognizes this

distinction in holding that a victim has the right to recover the recording under the Act. 110 Cal.
App. 4th at 167 (holding that victim of illegal recording can recover the recording and any legal
expenses incurred in doing so). Plaintiffs seek an even lesser remedy at this time a preliminary
injunction barring any further dissemination of the illegal recording itself (not the information
disclosed on the recording). Defendants effort to mischaracterize the scope of the injunction to
cover information disclosed at the meeting and/or to confuse the distinction between the illegal
recording itself and the information disclosed at the May 22 meeting must be rejected.
The fact that the Court can issue the requested injunction is further supported by the Act
itself and its legislative history. The Act specifically authorizes injunctive relief and precludes the
admissibility of the recording in court. Pen. Code 637.2(b), 632(d); Jones Decl. _, Ex. _
(noting that [a] party subject to such eavesdropping should not be forced to forego seeking
redress for his grievances by the fear that in so doing he will be forced to disclose at a public
hearing the very communication he is attempting, or was attempting, to keep confidential.).
Defendants argument that the injunctive relief provision only applies to future
eavesdropping is nonsensical and contradicts the holding in Lieberman. First, authorizing an
injunction only to prevent a future illegal recording would be meaningless. The mere knowledge
of the listeners intent to eavesdrop would eliminate any possible violation of the Act. Pen. Code
632(c). If Defendants were right, a party could never get an injunction. Second, Lieberman
specifically recognizes that a court can order the return of the illegal recording. This allows the
victim to control the distribution and effectuates the specific purpose of the Act. Third, while an
injunction may not go against statutory law, it may go beyond statutory law. People v. Custom
Craft Carpets, 159 Cal. App. 3d 676, 684 (1984) (Equity does not wait on precedent which
exactly squares with the facts in controversy, but will adjust itself to those situations where right
and justice would be defeated but for its intervention.) (citations omitted). Thus, the Court has

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also the equitable power to enjoin Defendants from disseminating the illegal recording.
The only way this injunction would not be available here is if the Act contained a
provision expressly barring it. There is nothing in the Act, the legislative history, or the case law
that would support such an absurd construction. To conclude otherwise would mean that the
Legislature enacted a statute designed to protect people from losing the right to control the
nature and extent of the firsthand dissemination of his statements (Ribas, 38 Cal. 3d at 361) and
at the same time, intentionally blocked courts from issuing injunctive relief to effectuate that
exact purpose. Indeed, Lieberman establishes that the opposite is true.1
III.

THE PRELIMINARY INJUNCTION IS NOT AN INVALID PRIOR RESTRAINT

A.

The Requested Injunction Is Content Neutral, Aimed At Unlawful Conduct,

Serves A Significant Government Interest, And Is Narrowly Tailored

Defendants argument that prior restraints are pre se prohibited regardless of the illegality
the information gathering techniques is wrong.

Prior restraints on speech are subject to

constitutional scrutiny. However, the U.S. Supreme Court and the California Supreme Court have
regularly upheld speech-restricting injunctions under the prior restraint doctrine.

See, e.g.,

Madsen v. Womens Health Ctr., 512 U.S. 753, 776 (1994) (upholding injunction barring antiabortion protesters from demonstrating in certain places and ways outside of abortion clinics);
Schenck v. Pro-Choice Network, 519 U.S. 357, 385 (1997) (same); Planned Parenthood ShastaDiablo v. Williams, 10 Cal. 4th 1009, 1024 (1995) (same); Bunner, 31 Cal. 4th at 889-890
(upholding injunction barring dissemination of trade secret software code). Ignoring Defendants
false tautologies and applying the correct constitutional analysis, it is clear that the requested
injunction is not an invalid prior restraint.
The prior restraint doctrine does not bar content-neutral injunctions directed at prior
unlawful conduct. Bunner, 31 Cal. 4th at 885-889 (citing Madsen, 512 U.S. 753). Such an
injunction is one that that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not others. Id. at
877. In contrast, injunctions that by their terms distinguish favored speech from disfavored
1

Defendants argument also ignores Plaintiffs other claims. Plaintiffs assert claims for conversion and
unfair competition. Both claims also support the relief sought by the injunction.

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speech on the basis of the ideas or views expressed are content based. Id.
Plaintiffs requested preliminary injunction is content neutral as it is not directed at the
information disclosed, but the unlawful recording itself. The Invasion of Privacy Act prohibits
people from secretly recording confidential communications regardless of the specific content of
the communication. Pen. Code 632(a); Ribas, 38 Cal. 3d at 360-361. As discussed above, this
is precisely what Plaintiffs request here an injunction prohibiting Defendants from
disseminating the illegal recording (unlawful conduct), not from repeating what the parties said
during the May 22 meeting (content neutral). In this way, Plaintiffs requested injunction is no
different than the injunctions upheld in Madsen, Schenck, and Williams, where anti-abortion
protesters were constitutionally enjoined not in what they wanted to say, but how, where, and
when they wanted to say it. Such injunctions are simply not subject to strict constitutional
scrutiny. Because Plaintiffs requested injunction is content-neutral and aimed at Defendants
unlawful conduct, it is not barred by the prior restraint doctrine. See Bartnicki v. Vopper, 532
U.S. 514, 526 (2001) (holding that federal anti-wiretapping law prohibiting illegally-recorded
communications is a content-neutral law of general applicability).
Plaintiffs requested preliminary injunction also serves a significant government interest
and is narrowly tailored.

A content-neutral injunction must burden no more speech than

necessary to serve a significant government interest. Bunner, 31 Cal. 4th at 880 (quoting
Madsen, 512 U.S. at p. 765).

An injunction under the Act clearly serves two significant

government interests. First, it protects an important aspect of privacy of communication the

right to control the nature and extent of the firsthand dissemination of his statements. Ribas, 38
Cal. 3d at 361.

Second, it removes an incentive for parties to secretly record private

conversations. See Bartnicki, 532 U.S. at 529. Plaintiffs requested injunction burdens no more
speech than necessary to serve these purposes.

Again, Plaintiffs only seek to enjoin the

dissemination of the illegal recording, not Defendants ability to publish what was said during the
May 22 meeting. This critical distinction is dispositive of any prior restraint concern.

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B.

Defendants Prior Restraint Argument And Analysis Are Misguided

Defendants argue that the injunction would constitute an unconstitutional prior restraint.
Opp. pp. 2-3. However, Defendants glaringly fail to cite, apply, or argue the correct legal
standard of the prior restraint doctrine discussed above. See, e.g., Madsen, 512 U.S. at 776;
Bunner, 31 Cal. 4th at 889-890.
Each of the cases cited by Defendants are either inapposite or reflect a basic
misunderstanding of constitutional law.

First, cases addressing the constitutionality of an

injunction prohibiting defamatory speech are inapposite because they involve content-based
restrictions and therefore are subject to a different level of scrutiny. See Balboa Island Village
Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1147-1162 (2007) (assessing permanent injunction for
defamatory statements); see also Wilson v. Superior Court, 13 Cal. 3d 652, 658 (1975) (same).
Second, Defendants assertion that a preliminary injunction is improper even if the
content of the speech was improperly obtained is legally wrong. Opp. p. 2. The U.S. Supreme
Court has never held that a defendant who illegally acquires information is constitutionally
privileged to publish it. Bartnicki, 532 U.S. at 528 (stating that New York Times v. United States
[403 U.S. 713 (1971)] raised, but did not resolve the question whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, government may ever
punish not only the unlawful acquisition, but the ensuing publication as well.) (bold emphasis
added; citations omitted).2 Courts following Bartnicki have held that the distinction between
lawfully and unlawfully obtained information is crucial for the constitutional analysis. See
Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 940, 951-954 (7th Cir. 2015) (newspaper
possesses no constitutional right either to obtain the officers personal information from
government records or to subsequently publish that unlawfully obtained information) (emphasis
added). Tellingly, Defendants fail to cite Bartnicki or the cases rejecting a constitutional right to
publish information that is unlawfully obtained by the defendant.
2

Nor did CBS, Inc. resolve the question. As the California Supreme has concluded, CBS, Inc. is not only
arguably not binding on this court because it is a single-justice order, but the main problem with the
injunction in that case was the lack of clear evidence establishing that CBS had acquired [the]
information by improper means. Bunner, 31 Cal. 4th at 887. This case does not have that problem.

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Instead, Defendants improperly rely on a single case decided by the Sixth Circuit (In re
King World Productions, Inc., 898 F.2d 56 (6th Cir. 1990)) that pre-dates, and conflicts with,
Bartnicki and misconstrues New York Times. Indeed, at least one California court has expressly
rejected the holding and reasoning of King World. See Marin Independent Journal v. Municipal
Court, 12 Cal. App. 4th 1712, 1722 fn. 3 (1993) (holding that journalist did not have a
constitutional right to publish photos obtained unlawfully). Defendants have no constitutional
right to disseminate the secret video that they recorded in violation of the Act. And the requested
injunction is not an invalid prior restraint under Madsen.
IV.

PLAINTIFFS WILL PREVAIL UNDER THE INVASION OF PRIVACY ACT

Plaintiffs need to establish some possibility that they will prevail on the merits of their

claim at trial. Hunt v. Superior Court, 21 Cal. 4th 984, 999 (1999). As set forth in Plaintiffs
application, and reinforced by the video footage, Plaintiffs easily meet this standard. Defendants
three merits-related arguments all fail.
A.

Wilkins v. NBC Is Inapposite

Defendants argue that Wilkins v. Natl Broad. Co., 71 Cal. App. 4th 1066 (1999) is
determinative of the merits question. Opp. pp. 5-6. However, as Plaintiffs demonstrated in their
moving papers, Wilkins is inapposite. In that case, the court applied the wrong legal standard.
The court in Wilkins improperly focused on the content of the communication, rather than the
parties expectations of being overheard or recorded. See Turnbull v. ABC, No. 03-3554, 2004
U.S. Dist. LEXIS 24351, at *9 & fn. 4 (C.D. Cal. Aug. 19, 2004) (noting that Wilkins test was
discarded by the California Supreme Court in Flanagan). The fact that Wilkins relied upon a
discarded legal standard alone makes it inapposite. Moreover, contrary to Defendants assertion,
Wilkins is not practically identical to the situation here. Opp. p. 6. As discussed below, other
than the fact that both meetings took place in a restaurant, they are markedly dissimilar.
B.

Defendants Evidence Does Not Override Plaintiffs Merits Showing

A communication is confidential if a party had an objectively reasonable expectation

that the conversation [was] not being overheard or recorded. Flanagan v. Flanagan, 27 Cal. 4th

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766, 768 (2002). Defendants argue that their evidence establishes that the May 22 meeting was
not confidential.

Opp. pp. 7-10.

Defendants submit Daleidens declaration recounting his

recollection of the meeting and four short excerpts of the secret video recording. Based on this
evidence, Defendants argue that the meeting did not occur in a secluded place, that Dyer did not
keep her voice at a low volume, and that Dyer did not caution anyone to lower their voices or
halt the conversation when staff approached. None of these claims help Defendants.
Defendants video clips and the video as a whole support the conclusion that the May 22
meeting was confidential. First, the conversations of the other diners at the restaurant cannot be
overheard in any of the video. See Defs. Ex. A, Clips A1-A4. Given that the video shows that
participants in the meeting could not hear the conversations of the people around them, it is
certainly reasonable that Dyer, Cooksy, and Barr believed that others were not listening to their
conversation. Second, contrary to Defendants assertions, the video shows that the meeting took
place in the back corner of the restaurant with no one sitting near their table until the very end of
the meeting. This is exactly what was stated in Plaintiffs declarations. Third, Defendants
attempt to attack Dyers recollection of cautioning the participants to lower their voice when in
fact it was Cooksy who made the comment (and Dyer agreed to it). Id., Clip A2. Whether it was
Cooksy or Dyer is irrelevant because the fact is that the video clearly shows that they did not
want to be overheard. Fourth, the fact that on two short occasions the conversations continued
while the server was present for a total of 25 seconds does not change the result. Id., Clips A3A4. Not only do Defendants fail to mention that the conversation did stop during other times that
the server approached the table, but they ignore the relevant case law cited by Plaintiffs on this
issue. See App. pp. 10-11. The evidence shows that the meeting was confidential under the Act.
C.

Defendants Section 633.5 Justification Fails

Defendants audaciously argue that their illegal actions were justified because they
reasonably believed that Plaintiffs were involved in committing the crimes of partial birth
abortion and murder. Opp. pp. 10-12. The Act exempts persons who secretly record a private
conversation if it is reasonably believed to relate to the commission by another party to the

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communication of any felony involving violence against the person. Penal Code 633.5
(emphasis added). A reasonable belief involves two questions: (1) what the recorder actually
believed at the time of the recording; and (2) whether that belief was reasonable. Kuschner v.
Nationwide Credit, Inc., 256 F.R.D. 684, 689 (E.D. Cal. 2009). The sole basis for Defendants
Section 633.5 defense are the hearsay statement in Daleidens declaration that Holly ODonnell (a
StemExpress former employee) told him that the company has received fully intact fetuses and
the unsupported allegation that Dyers statement stated that the company see[s] a lot of intact
fetuses. Opp. p. 11. This evidence is demonstrably false and wholly insufficient to justify
Defendants illegal conduct.
Defendants belief that Plaintiffs are harvesting and killing live babies for resale (Opp.
p. 11) is neither objectively reasonable nor credible from a subjective standpoint. First, abortion
before viability is not murder in California. Health & Saf. Code 123466. While Defendants
may wish that abortions were illegal and constitute murder, that is simply not the law. This alone
precludes Defendants purported defense of their illegal conduct. Second, Defendants have no
evidence that would even remotely support the claim that Plaintiffs participated in any abortion
procedure involving a viable fetus.

To state the obvious, StemExpress does not perform

abortions. And contrary to Daleidens hearsay statements, StemExpress has never received a
living, fully-intact fetus from an abortion clinic. Dyer Decl. _.
Nor did Dyer ever say that StemExpress received intact fetuses during the May 22 dinner.
Defendants statements to the contrary are simply fabricated. What Dyer said was that the
company receives intact cases, referring to a complete tissue specimen (such as a whole liver or
heart), not a whole fetus.

See Defs. Ex. A, Clip A1 (responding to question about intact

specimens); Dyer Decl. _. Indeed, the context of the rest of the conversation surrounding
Dyers statement plainly demonstrates that she was talking about whole liver specimens. Id. _.
And Defendants know that they are misleading the Court about this issue. See Jones Decl. __,
Ex. _ (8/14/15 CMP website statement that StemExpress leadership confirmed to CMP
investigators in May they are struggling to meet demand for intact fetal livers) (emphasis

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added). Furthermore, the veracity of Daleidens subjective belief that Plaintiffs were involved in
such practices is highly questionable given that he never reported any crimes to law
enforcement during his two-year investigation. Defendants Section 633.5 defense fails.
V.

PLAINTIFFS IRREPARABLE HARM OUTWEIGHS DEFENDANTS HARM

As Plaintiffs have shown, they face irreparable harm from Defendants illegal conduct on

several levels. First, the entire point of the Act is to protect a speakers right to control the
manner of distribution of their speech. This would be directly infringed upon if Defendants are
permitted to control the dissemination of the video.

Ribas, 38 Cal. 3d at 361.

Second,

Defendants do not contest that they intend to publicly release an edited version of the video that is
designed to provoke a hostile reaction.

The personal safety threat to Plaintiffs and their

employees, which is already a grave concern, will get worse if this occurs. Dyer Decl. 46-51.
Defendants argue that Plaintiffs will not face irreparable harm if the injunction is denied.
Opp. pp. 12-14. As to the release of a misleadingly-edited video, Defendants admit that is their
intention. Instead, they contend that any harm caused by such a video will be eased by the
concurrent release of the full-length video of the meeting. As with their other arguments, this
misses the entire point of the injunction. Again, it is not the content of the meeting that Plaintiffs
seek to enjoin. Rather, it is the form in which the material is released. Defendants seek to release
the content in a form they do not have a right to for purposes of inflaming others to endanger
Plaintiffs and their business. Indeed, Defendants concede that the video might cause them to
suffer harassment. Id. p. 14. Clearly, preventing its release will necessarily prevent such harm.
Notably, Defendants do not argue that they will suffer any harm if the injunction is
granted. Instead, they argue that the public interest weighs in favor of denying the injunction.
Opp. pp. 14-15. However, the only public interest cited by Defendants is to make Plaintiffs
disreputable and potentially criminally conduct public and to advance ongoing congressional
investigations into the false allegations started by Defendants. Id. p. 14. This argument fails,
however, given that the requested injunction does not bar the release of any content. At most, this
assertion merely restates the constitutional concerns Defendants have wrongfully invoked. If any

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public interest is relevant, it is the one served by protecting Plaintiffs privacy rights.3
VI.

CONCLUSION
For the foregoing reasons, the Court should enter the requested preliminary injunction.

Dated: August 19, 2015

McDERMOTT WILL & EMERY LLP

By:
CHARLES E. WEIR
Attorneys for Plaintiffs

Defendants do not address the bond issue in their opposition and have waived the right to request one.
See Smith v. Adventist Health System/West, 182 Cal. App. 4th 729, 741-743 (2010) (party may waive or
forfeit right to injunction bond where they consciously choose to no address it). Even so, if any bond is
required by the Court, it should be minimal as Defendants have not argued that they will suffer any harm,
monetary or otherwise, if the preliminary injunction is granted. See Civ. Proc. Code 529(a).

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