Skip to main content


Reset A A Font size: Print

Court of Appeal, Second District, Division 6, California.

PLANNED PARENTHOOD OF SANTA BARBARA, VENTURA AND SAN LUIS OBISPO COUNTIES, INC., Plaintiff and Respondent, v. Greg AAKHUS et al., Defendants and Appellants.

Civ. No. B061353.

Decided: January 26, 1993

Price, Postel & Parma, David K. Hughes and Craig A. Parton, Santa Barbara, for defendants and appellants Greg Aakhus, Anna Lemos, Riccardo Lemos and Garvan Kuskey. Michael D. Imfeld, Newport Beach, and Robert D. Silver, Ventura, for defendant and appellant Operation Rescue of Southern California. Eskin & Jackson and Hannah–Beth Jackson, Ventura, for plaintiff and respondent Planned Parenthood of Santa Barbara.

Appellants/defendants Operation Rescue of Southern California (ORSC), and Greg Aakhus, Anna and Riccardo Lemos, and Garvan Kuskey (Aakhus) challenge the trial court's order awarding respondent/plaintiff Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo Counties, Inc., attorney fees in the amount of $36,365 pursuant to Code of Civil Procedure section 1021.5.   We affirm.


Respondent provides medical counseling and services, and when appropriate, performs abortions on its premises.

Beginning in 1989, appellants engaged in certain obstructive conduct at respondent's Santa Barbara clinic.   They chased the vehicles of clinic patrons in respondent's parking lot and they attempted to force antiabortion literature and fetus dolls through the patrons' car windows.   Appellants also chased, insulted and threatened, and photographed and videotaped respondent's patrons as they entered respondent's premises, and entered the clinic building to harass persons inside.

Respondent obtained an injunction in a federal action prohibiting trespasses upon private property by antiabortion demonstrators.   Respondent sought to have the Santa Barbara District Attorney enforce the federal injunction against appellants herein.   The district attorney refused, advising respondent to seek a state court injunction against the offending parties.

Pursuant to this advice respondent filed the present action in September 1989, asking for damages, a temporary restraining order, preliminary and permanent injunctions, and attorney fees.

A temporary restraining order was granted prohibiting appellants from trespassing onto respondent's property, and from touching or abusing any of respondent's clients whether on or off respondent's property.

Following a hearing on respondent's request for a preliminary injunction, the trial court found that respondent's clinic and parking lot was not open to the public at large, but available only to respondent's patients, staff and invitees.   The court stated that appellants admitted entering respondent's parking lot and clinic without respondent's consent.   The court further found that appellants had an alternative means of communicating with respondent's clients by the public sidewalks bordering respondent's clinic.   The court also found that appellants interfered with respondent's quiet use and enjoyment of its property, “use” meaning the providing of health care services.

The court concluded in granting the preliminary injunction that “[respondent] has proven that it will suffer irreparable injury to its property rights, and [respondent] and its patients will suffer irreparable injury to their fundamental rights guaranteed by the United States and California Constitutions, if a preliminary injunction does not issue.”

Subsequently, respondent filed its first amended complaint asking for damages and a permanent injunction based on causes of action for trespass, tortious interference with business, public nuisance, and violation of state constitutional rights.   According to appellants, respondent's original complaint pled a cause of action for conspiracy to violate federal constitutional laws.   Appellants' demurrer to this cause of action was sustained, and respondent filed the first amended complaint which omitted any federal constitutional claim.1

Respondent's cause of action for violation of state constitutional rights was based on the privacy guaranty pursuant to California Constitution, article I, section 1.2  Respondent alleged that appellants' conduct “violates and will violate a fundamental right to choose and obtain abortions guaranteed to all women, including women patients and clients of [respondent]․  PLANNED PARENTHOOD has standing to assert and seek injunctive relief to protect the fundamental state constitutional rights of its women patients and clients.  ․ [¶] ․ [Appellants], and each of them, have threatened to continue their violation of the fundamental constitutional rights of [respondent's] women patients and clients.”

Appellants' answer to respondent's first amended complaint alleged that respondent's parking lot was not private for the purpose of exercising First Amendment rights, respondent did not have standing to assert its clients' constitutional right to privacy, respondent had not suffered any actual economic damages, and appellants' actions were protected by the First Amendment.

Five months after appellants filed their answers, the parties signed a settlement agreement which resulted in the filing of a stipulated judgment.   Pursuant to the agreement and judgment, appellants stipulated that a permanent injunction should be issued against them prohibiting them from trespassing onto respondent's property, impeding or obstructing access of respondent's clients to its facility, and placing signs or other tangible objects on respondent's property.   The settlement agreement further provided that the trial court retained jurisdiction to rule on respondent's request for attorney fees in its first amended complaint, which issue was to be determined after a court trial.

Following a trial, the court awarded respondent attorney fees.   In so ruling, the judge found that respondent's action resulted in the enforcement of a right affecting the public interest, the action conferred a significant benefit on the public or a large class of persons, the necessity and financial burden of the suit made an award of fees appropriate, and fees should be paid by the defendants in the interest of justice.3


Both appellants Aakhus and ORSC raise issues concerning their underlying conduct which formed the basis for the stipulated judgment.   Appellants Aakhus contend that respondent had no standing to sue on behalf of its clientele, and the right to privacy cannot be asserted against private defendants.   Appellant ORSC argues that it did not conduct any activities or demonstrations on or around respondent's property and therefore simply was not involved in this case.   We have no jurisdiction to review these claims since appellants did not appeal from the stipulated judgment.  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666–667, 125 Cal.Rptr. 757, 542 P.2d 1349.)  “A judgment by stipulation is as conclusive a bar as a judgment rendered after trial.”  (Ellena v. State of California (1977) 69 Cal.App.3d 245, 259, 138 Cal.Rptr. 110.)

The sole issue in this appeal is the correctness of the attorney fee award.   Appellants 4 contend the trial court abused its discretion because respondent failed to establish that it met any of the requirements for the award pursuant to section 1021.5.

Section 1021.5 codifies the private attorney general theory.   Under the statute, three requirements must be met in order for a successful party to recover attorney fees:  (1) the action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement make the award appropriate.  (§ 1021.5;  Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933–935, 154 Cal.Rptr. 503, 593 P.2d 200.)

Whether a plaintiff has met the requirements for an award of trial fees is a legal question for the trial court.  (Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, 555, 202 Cal.Rptr. 400.)   Its judgment will not be disturbed unless the appellate court is convinced that it is clearly wrong and constitutes an abuse of discretion.  (Inmates of Sybil Brand Institute for Woman v. County of Los Angeles (1982) 130 Cal.App.3d 89, 114, 181 Cal.Rptr. 599;  Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 645, 280 Cal.Rptr. 329.)

Important Right

Appellants argue that the first statutory requirement, the enforcement of an important public right, does not apply here since this case dealt only with the issue of trespass onto respondent's property.   Consequently, this was a “property” action not involving the constitutional issue of privacy.   Even if an important public right was vindicated, they contend it was only an indirect result of respondent's suit.

Appellants misinterpret the record.

First, their view that the trial judge remarked this case did not involve abortion is without merit.   The court commented only that this case did not address the rightness or wrongness of the right to abortion.

Second, respondent's first amended complaint alleged two distinct injuries, one to itself for appellants' alleged trespasses on its property, and the other to its clients for appellants' alleged violation of their right to choose an abortion.   In granting respondent a preliminary injunction, the trial court concluded in a written statement of reasons preceding the injunction that it would prevent irreparable injury to respondent's property rights and to respondent's patients' fundamental constitutional rights.   The settlement agreement specifically states that the stipulated judgment shall adopt the “identical language” of the preliminary injunction.   We must presume in the absence of a contrary indication that “language” includes the court's statement of reasons.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.)

Appellants argue that the settlement agreement and stipulated judgment make no mention of appellants' violation of the constitutional right to privacy.   This fact inures to respondent's favor.   Neither do the agreement and judgment make mention of appellants' violation of respondent's right to quiet enjoyment and use of its property.   Pursuant to the agreement, appellants admitted liability “as may be stipulated to in the agreement.”   The agreement specifically allows a permanent injunction against appellants for all of their activities at respondent's clinic.   We therefore must presume that this constituted an implied admission of all of respondent's causes of action in its first amended complaint, including the one alleging violation of the California Constitution.  (Denham v. Superior Court, supra, 2 Cal.3d at p. 564, 86 Cal.Rptr. 65, 468 P.2d 193.)

An award pursuant to section 1021.5 is justified if the litigation has effectuated a fundamental constitutional right.  (Press v. Lucky Stores, Inc., supra, 34 Cal.3d 311, 319, 193 Cal.Rptr. 900, 667 P.2d 704.)   There can be no doubt that here a fundamental constitutional principle was vindicated.   The right to decide whether or not to bear a child is a fundamental constitutional right pursuant to the privacy guaranty of California Constitution, article I, section 1.  (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779;  American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 836, 263 Cal.Rptr. 46.)

Appellants admit that their proscribed activities “were directed at the clients of respondent who appellants believed were entering respondent's facility in order to obtain an abortion.”   However, their proscribed activities comprised trespasses onto respondent's property, the subject of this suit as noted by appellants.   Thus, private property was entered to disrupt the exercise of the constitutional right to abortion.   Hence, here the private property issue was inextricably tied into an important public right.


Appellants next argue that the second statutory requirement of a significant benefit on the public or a large class does not apply to this case since the trial court had no evidence from which to conclude that any particular persons benefited from respondent's suit.   Appellants point out that respondent did not even present any figures on the number of clients who obtained abortions at its Santa Barbara clinic.   Thus, they argue, the stipulated judgment provides no precedential value.

Appellants misconstrue the law on this issue.   The evidence of the size of the population benefited by a private suit is not always required, and was not necessary here.

Although fundamental constitutional rights are by nature individual rights, their enforcement benefits the entire public.  (Press v. Lucky Stores, Inc., supra, 34 Cal.3d 319, 193 Cal.Rptr. 900, 667 P.2d 704;  California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 749, 246 Cal.Rptr. 285.)  “Indeed, only by protecting each individual's [fundamental rights] will society's general interests in these rights be secured.”  (Press v. Lucky Stores, Inc., supra, at p. 319, 193 Cal.Rptr. 900, 667 P.2d 704.)   Further, the substantial benefit may be conceptual or doctrinal, and need not be actual and concrete, so long as the public is primarily benefited.  (Braude v. Automobile Club of Southern Cal. (1986) 178 Cal.App.3d 994, 1011, 223 Cal.Rptr. 914.)

In this case, the benefit to the public was conceptual and overriding.   The judgment conveys a message that the right to express disapproval of abortion does not include the right to perform acts which burden the lawful exercise of the right to obtain an abortion.   This benefits all women in the State by insuring their right to abortion may be exercised without interference by members of the public.   It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny.  (Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 241, 256 Cal.Rptr. 194, citing Thornburgh v. American Coll. of Obst. & Gyn. (1986) 476 U.S. 747, 766, 106 S.Ct. 2169, 2181–82, 90 L.Ed.2d 779.)

Burden of Litigation

This third statutory element requires that the cost of the litigation to plaintiff be disproportionate to plaintiff's individual stake in the outcome.   (California Common Cause v. Duffy, supra, 200 Cal.App.3d at p. 750, 246 Cal.Rptr. 285.)   In other words, this criterion is met when the cost of the claimant's legal victory transcends his personal interest in the subject of the suit.  (County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 868, 223 Cal.Rptr. 846.)

This requirement was fulfilled here.   Since the district attorney refused to prosecute appellants without respondent first obtaining a state court injunction, respondent's suit was legally necessary.  (California Common Cause v. Duffy, supra, 200 Cal.App.3d 751, 246 Cal.Rptr. 285;  Save Oxnard Shores v. California Coastal Com. (1986) 179 Cal.App.3d 140, 154, 224 Cal.Rptr. 425.)   Further, respondent received no monetary recovery.  (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1469, 240 Cal.Rptr. 1;  California Common Cause v. Duffy, supra, pp. 751–752, 246 Cal.Rptr. 285.)

Appellants maintain that respondent had a sufficient business motive to wage this suit.   We agree.   Nevertheless, this does not mean that the effects of respondent's suit should be interpreted solely as a private success story.   The interests of respondent and its clients, rendering and receiving reproductive medical care, are inseparable.   This action cannot be characterized as purely self-serving, since it was brought to protect both respondent and its present and future clients.

Furthermore, the decision to award attorney fees does not result in a miscarriage of justice.  Section 1021.5 fees may be awarded against private parties.  (County of Fresno v. Lehman (1991) 229 Cal.App.3d 340, 349–350, 280 Cal.Rptr. 310;  Bartling v. Glendale Adventist Medical Center (1986) 184 Cal.App.3d 97, 103, 228 Cal.Rptr. 847.)   The awarding of such fees against appellants does not, as they maintain, have a chilling effect on the right to freedom of expression under the First Amendment.   No “balancing of constitutional rights” occurred here since appellant's activities did not comprise a legitimate exercise of free speech.   Instead, this case confirms that the exercise of the right to free speech is appropriate only “within the traditional public forum of the public sidewalk.”  (Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1674, 286 Cal.Rptr. 427.)   Moreover, it is a reminder to every citizen that the right of free speech is not limitless, and that legal liability may attach to certain individual acts having no respect for and impeding or injuring the rights of others.

The trial court's order awarding attorney fees to respondent is affirmed.   We further grant respondent's request for attorney fees on appeal.

Costs are awarded to respondent as the prevailing party.  (Cal.Rules of Court, rule 26(a).)


1.   Neither respondent's original complaint or appellants' demurrer thereto are included in the record in this appeal.

2.   The section reads:  “All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

3.   The court's judgment follows the language of section 1021.5 except in one respect.   The statute provides in pertinent part:  “Upon motion, a court may award attorney's fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:  (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”   According to the statute, subdivision (c) is inapplicable if there was no monetary recovery.  (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318, fn. 5, 193 Cal.Rptr. 900, 667 P.2d 704).   The same is true in the present case.   Therefore, the court's last finding that the award was justified in the interests of justice was not mandated.

4.   Our discussion of the attorney fee award applies to both appellant Aakhus and appellant ORSC.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.

Copied to clipboard