Tulare abortion clinic dispute set for court hearing December 16

Attorneys for FPA Women’s Health, a chain of clinics providing family planning and abortion services, have responded to a lawsuit attempting to close their newly-opened Tulare clinic at 1068 N. Cherry.

The Tulare Medical Center Property Owners’ Association, which governs the Tulare Medical Center complex where FPA is leasing its clinic space, filed suit at the end of September. They claim that FPA Women’s Health and their landlords, Leopoldo and Jennifer Valdivia, are violating the association’s covenants, conditions, and restrictions (CCRs), which specifically prohibit abortion clinics from operating in the complex.

The Tulare Medical Center is legally and physically separate from Tulare’s hospital, Adventist Health Tulare, formerly known as the Tulare Regional Medical Center.

FPA’s website claims that the Tulare clinic is open Monday through Friday and provides both surgical abortions and abortion pills, but a representative at its Bakersfield location stated that the clinic only provides patient services on Tuesdays and Fridays, and only provides the abortion pill.

FPA and the Valdivias, represented by the Herr Pederson & Berglund firm, filed an answer to the lawsuit on November 8 and hit back in a cross-complaint, alleging that the CCRs are “invalid, illegal, unenforceable or otherwise void.” They are seeking a “stay, temporary restraining order, preliminary injunction, and permanent injunction” preventing the association from enforcing the restrictions on the clinic.

Rachele Berglund, writing on behalf of the firm, also filed a motion to disqualify the judge initially assigned to the case, Gary M. Johnson. The case was reassigned to Bret Hillman.

The property owners’ association filed its own request for a temporary restraining order that would prohibit FPA from providing abortion services. A court hearing is currently set for 8:30am on December 16, 2024 in Department 2 of the Tulare County Superior Court.

FPA and the Valdivias make their case

In response to the lawsuit Berglund wrote, “Defendants deny generally and specifically, each and every allegation of the Complaint, both conjunctively and disjunctively and the whole thereof, and denies further that Plaintiff has been damaged, or will be damaged, in the amount claimed or in any other sum whatsoever or at all.”

Among the 15 “affirmative defenses,” Berglund claims the plaintiff didn’t file before the statute of limitations ran out.

“The Complaint was filed after the time period allowed, including but not limited to Code of Civil Procedure §337 and 339,” the filing reads.

He also claims that the TMCPOA has suffered no discernible damages.

“The measure of Plaintiff’s damages, if any, are based upon guesswork, speculation and conjecture and cannot be determined by a finder of fact,” the response states.

The cornerstone defense is that the CCRs are over 30 years old and written when the Tulare Local Healthcare District (TLHCD) owned the lots in the center – the 1068 N. Cherry lot was sold to the Valdivias in 2001 – which they no longer do.

”Plaintiff’s claims are barred as against Defendants because Plaintiffs claims are based on a contract term that is illegal, unenforceable, or otherwise void. “

TLHCD does appear to still own at least one empty lot in the Tulare Medical Center complex, APN 170-340-023, as well as the former VA Clinic at 1050 N. Cherry, which would make the district a member of the TMCPOA.

Randy Dodd, CEO of the TLHCD, did not respond to the Valley Voice’s request for information by publication. If a response is received, this article will be updated.

Property Owners’ Association files for temporary restraining order

In the lawsuit filed September 30, the property owners’ association also included a request for a temporary restraining order (TRO) against FPA Women’s Health.

On November 12, the association filed a motion with the court to speed up the process, stating that the attention drawn by FPA’s presence, and the presence of protesters holding signs with slogans such as “WOMEN DESERVE BETTER” and “DEATH IS NOT WELCOME HERE,” have created an “environment for patients that is awkward and uncomfortable, and discourages individuals’ continued patronage of the Medical Center.”

The association moved for a “temporary restraining order, a preliminary and permanent injunction prohibiting Defendants, any purported agents or representatives, either directly or indirectly, including through third persons or entities, from violating or continuing to violate the CC&Rs by providing abortion services at the subject property.”

If FPA is not providing abortion services in violation of the CCRs, FPA would be only slightly inconvenienced by a TRO that would effectively force them to remove incorrect advertising that their Tulare location offers them, the motion states.

At a hearing on November 13, Judge Hillman ruled that all parties would need to appear on December 16 – and that FPA and the Valdivias would need to show why they should not be subject to a temporary restraining order.

“Defendants appear before this court on December 16. “At that time, Defendants must show cause, if any, why they and those acting on their behalf should not be enjoined during the pendency of this action from engaging in the conduct described in the application.”

Dr. Robert Bell, association president, details impact of controversy

Dr. Robert Bell, DDS, filed a declaration in support of the temporary restraining order alongside the November 12 motion. He owns the property housing his dental office in the Tulare Medical Center and is president of the property owners’ association. (Coincidentally, he is married to Sherrie Bell, a former Tulare Local Healthcare District board member.)

He said that pro-life protesters reacting to FPA’s presence were a nuisance to the businesses in the complex, including his, even before the clinic opened its doors.

“This unwanted attention of the Association and the property and the owners of the Association not related to the medical purposes of the Medical Center is creating unwanted and annoying activities that are not helpful to the medical services provided at the Medical Center,” his declaration reads.

His office was previously in a “prime location with visibility to the N. Cherry St,” his declaration states – but the reaction to FPA’s presence has turned that upside into a “detriment,” he claims, since his patients are now in hearing distance and eyesight of the protesters.

Bell claims that “it is not conducive to maintaining or attracting [prospective] patients and clients who may be understandably reluctant to seek medical help within a Medical Center that is under a public microscope and controversy, or where protests are occurring.”

The CCRs prohibit not only abortion but also “activities which may be or may become an annoyance or nuisance to the complex,” his declaration reads.

“When I agreed to be subjected to these CC&Rs, I expected that the other property owners and tenants subject to the CC&Rs would agree to follow them. I also expected that if there was a lack of conformity to those CC&Rs, that the Plaintiff would use every legal means necessary to enforce compliance.”

Cross complaint

On the same day as their response to the association’s suit, Berglund filed a cross-complaint against the association, stating that the CC&Rs are invalid, and that actions by the property owners’ association have caused economic harm to FPA and the Valdivias.

The cross-complaint asks the judge for FPA’s own temporary restraining order, prohibiting Cross-Defendants from enforcing the CC&Rs.

“Cross-Defendants (TMCPOA) engaged in conduct to stop, prevent, frustrate,  discourage, and/or disrupt the relationship between Cross-Complainants (the Valdivias).  By engaging in this conduct, Cross-Defendants intended to disrupt the relationship or knew that disruption of the relationship was certain or substantially certain to occur. Cross-Complainants were harmed as a result of Cross-Defendants’  conduct in that they have been precluded from receiving any economic benefit that would result from the relationship and been denied the right to provide important and accessible women’s health care by Family Planning Associates Medical Group, Inc. at the Premises. Cross-Defendants’ conduct was a substantial factor in causing harm,” the filing reads.

Berglund’s filing adds that FPA Women’s Health’s “primary business is to provide important and accessible women’s health care in an area that is vastly underserved.”

“Cross-Defendants’ wrongful conduct, unless and until enjoined and restrained by order of this court, will cause great and irreparable injury to CrossComplainants as described above. A stay, temporary restraining order, preliminary injunction and permanent injunction is necessary to prohibit Cross-Defendants from enforcing the CC&Rs during the pendency of these proceedings.”