Appellant Robert Powers (Powers) contends that the trial court abused its discretion by denying his request for attorney fees after respondents Family Planning Specialists Medical Group, Inc., Carl Watson, and Paul Wright (collectively hereinafter respondents) voluntarily dismissed a complaint by which they had sought injunctive and monetary relief for Powers's distribution of leaflets respondents alleged to be libelous. Specifically, in their complaint, respondents claimed that Powers had threatened to and did distribute leaflets in which he falsely stated that the individual respondents, both of whom are board-certified obstetrician-gynecologists, specialized in late-term abortions, used a controversial abortion procedure known as "D&X" (the acronym used for the "dilatation and extraction" procedure), and performed abortions after the second trimester of pregnancy. We conclude that there is substantial support for the trial court's finding that Powers's defense of this action did not confer any "significant benefit ...
I. FACTUAL AND PROCEDURAL BACKGROUND
For several years before the instant action was commenced, Powers engaged in various types of public, anti-abortion protest activity, including protests directed at respondent Family Planning Specialists Medical Group, Inc. (hereinafter Family Planning Specialists) and its patients. On July 23, 1993, in Family Planning Specialists Medical Group, Inc. v. Powers (Super. Ct. Alameda County, No. 663820-5), the Honorable Joseph Carson entered a permanent injunction against Powers and his wife, Nancy, prohibiting them from photographing and verbally harassing patients of Family Planning Specialists, from obstructing ingress or egress to its premises, and from shouting, screaming, chanting or otherwise interfering with Family Planning Specialists' ability to provide safe and proper health care services to its patients.
On August 18, 1993, Drs. Wright and Watson received letters from Powers stating that, if they did not stop performing abortions, he would distribute a leaflet advising recipients that the doctors performed the "D&X" abortion procedure. As graphically depicted on Powers's proposed flier, the D&X procedure involves a partial breech extraction of a late-term fetus, leaving the head inside the uterus, followed by an incision at the base of the fetus's skull and aspiration of the skull contents. In uncontradicted, sworn testimony submitted to the trial court, Drs. Wright and Watson stated that neither they nor any other physician employed at their clinic has ever used the D&X procedure.
Drs. Wright and Watson were alarmed by Powers's letter, in part, because in February 1993 a national anti-abortion publication called Life Advocate had included their names in a list of so-called "Doctors from Hell," that is, physicians the publication labeled as "late-term abortion specialists," and one of the six other physicians targeted in the article was shot and wounded the day after Drs. Wright and Watson received Powers's letter.
On October 13, 1993, after receiving confirmation that Powers — using the name "Pro-Life Warrior" — had begun distributing a modified version of the flier, respondents filed the instant action seeking a temporary restraining order, a preliminary injunction, and damages for interference with prospective business advantage, trade libel, libel per se, ordinary libel, extortion, and false light. The modified version of the flier labeled Drs. Wright and Watson as "baby killers," and included the following statement: "Although Family Planning Specialists claim not to use the `D&X' ... abortion technique ..., several factors will put pressure on them to use this revolutionary abortion/infanticide procedure." Respondents maintain that this statement implied they actually performed the D&X procedure, but were lying when they denied it.
The trial court issued the temporary restraining order prepared by respondents' attorney with only minor changes, and set the matter for a hearing on the preliminary injunction on November 5, 1993. However, the parties stipulated to continue the hearing to November 18 in order to discuss a possible settlement.
Meanwhile, in violation of the temporary restraining order, Powers continued to distribute the leaflet, and was found to be in contempt of court on November 18, 1993. The court ordered Powers to pay sanctions to respondents in the amount of $1,000, and to serve three days in county jail. Initially, the court suspended the jail sentence, but reinstated it when Powers refused to pay the monetary sanctions as ordered.
Respondents' motion for preliminary injunction came on for hearing on November 18, 1993. After extensive oral argument, the trial court took the matter under submission and ultimately denied respondents' request. The trial court did not issue a statement of decision setting forth the basis for its decision. Thereafter, Powers failed timely to respond to the complaint and a default was entered on November 19. Powers brought a motion to set aside the default based on attorney error. His motion was granted on February 8, 1994, with the condition that he pay respondents sanctions in the amount of $350.
On March 7, 1994, respondents voluntarily dismissed their complaint without prejudice. On March 21, Powers filed a memorandum of costs and a motion for attorney fees pursuant to section 1021.5, seeking fees in the amount of $5,865.57. Powers asserted that he was the "successful party" within the meaning of section 1021.5, and that he had enforced an important right affecting the public interest. At a hearing on the motion, Powers's attorney asked for specific findings on each of the elements of an award under the statute. The trial court denied Powers's motion for attorney fees and specifically found that Powers's "defense of the action did not convey any significant benefit on the public at large or on any identifiable group. Therefore, defendant has not met the criteria of [section] 1021.5." The court also ordered that the $350 sanctions owing to respondents would be offset against an award of $444 for costs. This timely appeal followed.
The cases interpreting section 1021.5 have established a three-prong test for determining whether an award of attorney fees may be entered in favor of a "successful party."
Powers is correct in noting that section 1021.5 does not distinguish between plaintiffs and defendants. (County of San Luis Obispo v. Abalone
Had this action posed a serious threat to Powers's legitimate rights to speak out on the important and controversial issue of abortion, his recourse was a motion to strike the complaint under section 425.16, subdivision (b). Had he succeeded in showing that he was being required to litigate simply to preserve those rights, he would have been entitled to both a dismissal of the action and an award of attorney fees under section 425.16, subdivision (c). That is not what happened in this case. Rather, the respondents' evidence was sufficient to show, either as a matter of law or — at a minimum — to a prima facie level, that Powers's conduct fell outside the protective scope of the first amendment, and gave rise to meritorious claims (at least for monetary relief) of libel and intentional interference with business. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-825 [33 Cal.Rptr.2d 446] [to prevail on section 425.16 motion, plaintiff must make a prima facie showing of facts that will support a judgment in plaintiff's favor, including proof that negates constitutional defenses].)
Even assuming he was successful in securing some marginal enhancement of his own free speech rights, however, Powers was not entitled to recover attorney fees unless he also showed that he thus conferred a "significant benefit ... on the general public or a large class of persons." (§ 1021.5.)
This case is closely analogous to Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158 [188 Cal.Rptr. 104, 655 P.2d 306]. In one of two actions consolidated in that case, the California Coastal Commission (the Commission) had determined that the owners of a particular parcel of ocean-front property were required to obtain a permit to improve an existing seawall. (Id. at pp. 163-164.) The Commission granted the permit but imposed a condition that the property owners dedicate an easement for public access across a portion of their land. (Id. at p. 164.) The property owners successfully petitioned the superior court for writ of mandamus directing the Commission to set aside the condition. The Commission sought review of the trial court's ruling but ultimately moved to dismiss its appeal, admitting that the evidence of record was insufficient to support the conditions under its then current interpretation of the public access requirements of the applicable statutes. (Ibid.) The property owners then brought a motion seeking an award of their appellate attorney fees pursuant to section 1021.5.
Observing that "... the primary effect of the judgment was to invalidate the particular permit condition imposed in light of the limited facts" presented with respect to a particular parcel of land, our Supreme Court held that the property owners had not conferred a significant benefit on the general public or a large class of persons and, thus, as a matter of law, were not entitled to a fee award under section 1021.5. (Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at p. 167.) The court reasoned as follows: "The decision vindicated only the rights of the owners of a single parcel of property. It in no way represents, for example, a ringing declaration of the rights of all or most landowners in the coastal zone, nor will it `certainly lead to the Commission's abandoning its prior unconstitutional practices of conditioning statutorily authorized permits upon an individual's surrender of his private property,' as the plaintiffs contend." (Ibid.) In essence, the court found that the property owners had succeeded in enforcing only their own interests, and those only in the narrow factual circumstances of the case.
Similarly, to the extent Powers can claim he succeeded in vindicating his free speech rights, the trial court was justified in finding that Powers's
This case is also distinguishable from Abalone Alliance, supra, 178 Cal.App.3d 848. In that case, the County of San Luis Obispo and certain private entities and individuals sought approximately $3 million in damages allegedly sustained when the defendants (the Abalone Alliance, American Friends Service Committee, Greenpeace, and three individuals) staged a mass protest to prevent the Diablo Canyon nuclear power plant from going into operation. The Second District affirmed the judgment of the trial court, which had sustained the defendants' general demurrer to all the alleged causes of action and ordered the county to pay the defendants $82,500 in attorney fees pursuant to section 1021.5. (178 Cal. App.3d at pp. 854-864.) With respect to the latter order, the Second District held that the trial court's express finding that the litigation helped preserve the fundamental right of citizens to organize and participate in a mass political protest necessarily implied a finding that a "significant benefit" was conferred on the general public or a large class of people. (Id. at p. 866.) Again, Powers did nothing to protect or advance the rights of anyone other than himself. By so concluding, the trial court did not clearly err or abuse its discretion, and we, thus, see no reason to disturb the trial court's denial of Powers's request for attorney fees.
For all the foregoing reasons, the judgment of the trial court is affirmed. Costs to respondents.
Kline, P.J., and Haerle, J., concurred.
A petition for a rehearing was denied December 6, 1995, and the opinion was modified to read as printed above.