A Tulare County judge denied an initial attempt to legally prohibit abortion services at FPA Women’s Health in Tulare, part of a chain of clinics providing abortion and family planning services throughout California.
The clinic opened October 1 at 1068 N. Cherry inside the Tulare Medical Center, a complex of doctors’ offices and businesses near – but legally separate from – Adventist Health Tulare.
The Tulare Medical Center Property Owners’ Association is suing FPA, stating that association regulations prohibit abortion services in the complex.
Judge Bret D. Hillman made the ruling on Monday, December 16, after the property owners’ association filed for a temporary restraining order to prohibit abortions while the larger question of whether the regulations are legal continues.
The association asked the court for a “temporary restraining order, a preliminary and permanent injunction” prohibiting the clinic from continuing to violate the covenants, conditions, and restrictions (CCRs) which specifically state no abortion services are allowed in the center.
Hillman’s denial was one part of a legal battle involving FPA Women’s Health and the property owners’ association.
The association filed their lawsuit on September 30, naming FPA Women’s Health and the owners of 1068 N. Cherry, Leopoldo and Jennifer Valdivia as defendants.
The association claims, “Per Section 7.01, the board of the Association decided that such use proposed by the Valdivias or their tenant FPA of providing abortions did not comport with the CC&Rs and did not fulfill the purpose of the medical complex.”
FPA and the Valdivias have since countersued and filed for an injunction of their own against the association, accusing them of causing economic hardship by trying to close the clinic.
According to the FPA Bakersfield office, FPA does not provide surgical abortions in Tulare – though its website says that it does – but it does provide the abortion pill that can be effective up to the 11th week of pregnancy.
Arguments for and against the injunction
FPA claims that the CCRs discriminate against women under multiple California laws.
“Defendants (FPA) contends the CC&R’s prohibition of abortion clinics is violative of the Unruh Civil Rights Act (Civ. Code, § 51) and section 1.1 of article I of the California Constitution, entitled ‘Reproductive Freedom.’”
The property owners’ association countered in filings that “it is well-established in the law, as well as commonsense, that abortion is not synonymous with sex or gender, and opposition to abortion is not sex-based discrimination.”
To grant an injunction, Hillman said that the association would have to prove that they would “ultimately prevail on the merits of [their] claim.”
Hillman wrote that he agreed with some of the association’s arguments, such as that the CCRs do not violate the California Constitution but he leaned heavily on an analysis that the regulations likely violate California’s Unruh Civil Rights Act.
“Primarily, however, the Association’s argument focuses on the enforceability of the CC&Rs generally, without regard to their potentially discriminatory implications,” he said.
Hillman argued, “the question presented here is not whether the CC&Rs implicate federal constitutional discrimination standards, but whether they are violative of California’s Unruh Civil Rights Act.”
In an interesting note Judge Hillman pointed out, “It appears to the court, however, based on its own review of the law, that defendants’ sparse explanation and dearth of cited authority may be a result of the apparent fact that no California higher court has previously considered whether a business establishment’s restrictions on the performance of abortions constitutes discrimination against women.”
Hillman also did not agree with the property owners’ association’s arguments that they have suffered “irreparable harm” because of pro-life protests that took place at the center.
“No doubt such activity is disruptive and unwelcome both by the Association and those who patronize businesses within the Tulare Medical Center, but this activity is not caused by FPA’s activities at the medical center; rather, it is caused by various members of the public, with no demonstrated connection to FPA, who apparently harbor strong views on the issue of abortion and a desire to express them publicly. The application for a preliminary injunction contains several photos of what appears to be a single protest from this group at TMC in October 2024,” the decision reads.
Hillman wrote that the association would be unlikely to prevail in their case using the argument that the “clinic may be or may become an annoyance or nuisance to the complex.”
Hillman concluded his decision saying, “Given, then, as covered above, that the court finds that, at this stage, the Association has not carried its burden to show a likelihood of prevailing on the issue of whether the CC&Rs violate the Unruh Civil Rights Act, or other California laws, the court also concludes that the Association fails to show that the balance of harms supports the issuance of a preliminary injunction.”
“Accordingly, the request for a preliminary injunction is denied.”
Association tries to shoot down FPA’s cross-complaint
Attorneys for FPA hit back against the association’s lawsuit with a cross-complaint filed on November 8. In it, attorneys for the clinic sought their own temporary restraining order that would prevent the association from enforcing the regulations.
FPA and the Valdivias, represented by the Herr Pederson & Berglund firm, allege 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.
“Cross-Complainants (FPA, Valdivias) were harmed as a result of Cross-Defendants’ (TMCPOA) 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.
TMCPOA, in response to FPA’s request for an injunction, filed an Anti-SLAPP (Strategic Lawsuit Against Public Participation) motion against the clinic and property owners.
Anti-SLAPP laws were passed to protect free speech and dismiss lawsuits filed primarily to intimidate or silence criticism through expensive litigation.
On November 27, one of the lawyers for TMCPOA, Catherine W. Short from the Life Legal Defense Foundation based her Anti-SLAPP suit on the allegation that FPA was infringing on TMCPOA freedom of speech.
Short claimed that the association’s defense of the CCRs – its “right to petition” – is protected speech and that an injunction would thus be illegal.
John Sarsfield of The Law Offices of Melo and Sarsfield who has filed several successful Anti-SLAPP cases said, “It’s different. I’ve never seen it before but that doesn’t mean it hasn’t happened.”
The hearing is scheduled for January 7 at 8:30 in Department 2.
As a board member of a public board that owns several lots in the Tulare Medical Center, I think this decision is a good one to keep neutral on the controversial topic of abortion and women’s rights.
The property owners association took this aggtressive action with no notice or input from its members. Its action goes against our mission to provide quality medical services to our district. By staying neutral, we also honor the separation of church and state as a governmental entity-the Tulare Local Healthcare District.