Opinion
G051487
01-27-2017
PATRICK PERCOSKI, Plaintiff and Appellant, v. JONI PERCOSKI, Defendant and Respondent.
Law Offices of Doonan & Doonan and D. Scott Doonan for Plaintiff and Appellant. Cihigoynetche, Grossberg, & Clouse, Kathy Spaniac and Lawya Rangel for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00718353) OPINION Appeal from an order of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed. Law Offices of Doonan & Doonan and D. Scott Doonan for Plaintiff and Appellant. Cihigoynetche, Grossberg, & Clouse, Kathy Spaniac and Lawya Rangel for Defendant and Respondent.
Patrick Percoski sued his ex-wife, Joni Percoski, for defamation and intentional infliction of emotional distress resulting from a speech Joni gave at a fundraiser luncheon for an organization that helps domestic violence victims. Joni filed a special motion to strike Patrick's complaint under Code of Civil Procedure section 425.16 (anti-SLAPP motion). The trial court granted Joni's anti-SLAPP motion, and Patrick appeals the court's decision. We find no error, and affirm the court's order granting Joni's anti-SLAPP motion.
We refer to the parties by their first names for clarity and ease of reference, and intend no disrespect.
"SLAPP" is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) All further statutory references are to the Code of Civil Procedure, unless otherwise indicated. Hereafter, we refer to section 425.16, subdivision (b)(1), as section 425.16(b)(1).
I
Joni filed an anti-SLAPP motion to strike Patrick's complaint against her for defamation and intentional infliction of emotional distress. In support of the anti-SLAPP motion, Joni submitted her own declaration. In his opposition to the anti-SLAPP motion, Patrick filed his own declaration and that of his acquaintance, Tiffani Trujillo.
Patrick and Joni are divorced. Joni stated she was the victim of domestic violence at the hands of her ex-husband, including emotional, verbal, and physical abuse. Patrick denied he ever abused his ex-wife, or anyone. After her divorce, Joni's therapist referred her to Human Options, an organization that helps victims of spousal abuse. Joni took classes, attended therapy sessions, and eventually graduated from Human Options.
In 2013, Joni was invited to speak at Human Options' annual fundraising event. Joni was listed in the event's program as a "Graduate Speaker" and her full name was not listed. In her speech, Joni spoke about her general experience with domestic violence but focused primarily on Human Options' support and guidance through empowerment classes and therapy. The purpose of the speech was to educate the attendees about Human Options and to encourage their financial support. Joni's speech did not focus on her own abuse. Joni did not mention Patrick's name at the event.
Patrick did not attend the event, but was informed by his acquaintance, Trujillo, about the event. Trujillo did not attend the event, but read a newspaper article about it on the Internet. After reading the article, Patrick filed a complaint against Joni for defamation and intentional infliction of emotional distress. In his complaint, Patrick alleged on information and belief that "while speaking as a domestic violence survivor at the Human Options domestic violence fund-raiser [Joni] published statements to the attendees of the fund-raiser, and all of them, that [Joni] was the victim of domestic violence at the hand of [Patrick]." He also contended those statements were knowingly false and defamatory, and they caused him reputational damage and emotional distress. Joni responded by filing the anti-SLAPP motion.
Before filing an opposition to Joni's anti-SLAPP motion, Patrick filed an ex parte application for an order shortening the statutory time to file and serve a motion to conduct limited discovery (ex parte application) on August 26, 2014, for a hearing on August 27, 2014. Patrick brought the ex parte motion on the grounds he needed reasonable time to have his motion heard and then take discovery in time for his opposition to the anti-SLAPP motion, due October 6, 2014. Joni filed an opposition. The trial court heard and denied the ex parte application. Patrick did not file a noticed motion to conduct limited discovery.
Patrick filed an opposition to the anti-SLAPP motion. The declarations in support of his opposition attached a November 27, 2013, Orange County Register article entitled "Eye on O.C.: Dr. Drew makes a call" (article), which detailed the Human Options' annual fundraising event. Joni was quoted in the article, as saying "'[m]y daughter was the one who got me out.'" The article stated "[t]he survivor speaker, Joni, who does not feel safe using her last name . . . [told a] riveting tale of fear and eventual escape [that] held the audience rapt." The article also included a photograph of Joni, identifying her as "Joni Percoski" in the caption under the photograph.
Joni objected to Patrick and Trujillo's declarations. The trial court granted Joni's anti-SLAPP motion and request for attorney fees. The court also sustained all but one of Joni's objections to the declarations.
II
Under California's anti-SLAPP statute, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech . . . shall be subject to a special motion to strike, unless the court determines . . . there is a probability that the plaintiff will prevail on the claim." (§ 425.16(b)(1).) In order to prevail on an anti-SLAPP motion, the defendant must first establish the challenged claims arise from activity protected by section 425.16. (Taus v. Loftus (2007) 40 Cal.4th 683, 712 (Taus).) Once the first prong of the anti-SLAPP statute is met, the burden shifts to plaintiff to establish, through admissible evidence, a probability of prevailing on the causes of action challenged by the anti-SLAPP motion. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) The second step is a "summary-judgment-like procedure." (Taus, supra, 40 Cal.4th at p. 714.) In deciding the second prong, the court does not weigh evidence or resolve conflicting factual claims. (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1105.) The court's inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.) "[C]laims with the requisite minimal merit may proceed." (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.)
Because Patrick concedes the first prong of section 425.16 is met, we need not address whether the causes of action arise from protected activity. The burden then shifts to Patrick to demonstrate the merit of his claims for defamation and intentional infliction of emotional distress by establishing a probability of success. (§ 425.16(b)(1).) We are mindful that our review of an order granting or denying an anti-SLAPP motion is de novo. (Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 680.) We turn now to Patrick's probability of success on the merits of his defamation and intentional infliction of emotional distress claims.
In determining whether Patrick has a probability of success on the merits of his defamation claim, the initial focus is whether he has properly pleaded a valid cause of action. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31 (Gilbert).) If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the motion. (See Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1018.)
Defamation is the "intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage." (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) "The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint." (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.)
Patrick's complaint for defamation is deficient on its face. Patrick fails to identify specific statements made by Joni and instead alleges on information and belief that "while speaking as a domestic violence survivor at the Human Options domestic violence fund-raiser [Joni] published statements to the attendees of the fund-raiser, and all of them, that [Joni] was the victim of domestic violence at the hand of [Patrick]." "An averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim." (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1498.)
Patrick similarly failed to provide admissible evidence of a single statement made by Joni in support of his defamation claim. He proffered his own declaration and that of acquaintance Trujillo to establish his defamation claim. The trial court correctly sustained Joni's objections to the majority of Patrick and Trujillo's declarations because they were not attendees of the fundraiser and lacked personal knowledge as to any statements made at the event. Patrick contends the article with Joni's quotes, picture, and full name attached was admissible under several exceptions to the hearsay rule and that it is "the pivotal piece of evidence" in the underling action. We disagree.
During the pendency of this appeal, Joni filed a request for judicial notice asking this court to judicially notice the Assembly Committee on Judiciary Comments to California Evidence Code section 1401. As discussed post, we conclude Patrick failed to carry his burden of showing a probability of success on the merits. Joni's request for judicial notice is therefore denied as moot.
The trial court did not abuse its discretion in ruling the article was inadmissible hearsay. Patrick attempted to introduce the article by way of a declaration of an acquaintance, Trujillo, who did not write the article or even personally attend the event at issue. Instead, Trujillo merely claimed she found the article on the Internet. Patrick contended Trujillo's assumptions about the article should be admissible evidence. Joni objected on the basis of hearsay, among other things.
The trial court ruled the article was inadmissible hearsay, even after considering Patrick's claims that the article constituted a party, adoptive, and/or judicial admission. In his arguments, Patrick ignored the key issue — the statements in the article were made by the author of the article and not by Joni. Patrick needed a declaration from the author or another witness to provide admissible evidence of Joni's alleged statements at the event. Barring this, Patrick could not offer the article for the truth of the matter asserted. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 83 ["We also conclude the Los Angeles Times newspaper article is hearsay and therefore decline to consider it for its truth"].) The court properly determined the article was inadmissible hearsay after considering all of the arguments by counsel and relevant law. The court did not abuse its discretion in excluding the article.
Even if the article had been deemed admissible, Patrick failed to point to any defamatory statement made by Joni in the article. The only quote from Joni in the article was "[m]y daughter is the one that got me out." The article's author went on to state Joni did not feel safe using her last name and that "[h]er riveting tale of fear and eventual escape held the audience rapt." Indeed, Joni's own declaration, which was not objected to, stated she did not mention Patrick's name in her speech or at the event. She also claimed her speech was generally about her experience with domestic abuse, but the primary content of her speech was how Human Options provided support and guidance through empowerment classes and therapy. There was no evidence, in the article or otherwise, that Joni made any defamatory statement against Patrick. Without a statement, Patrick's arguments are just speculation and conjecture about what may or may not have been said at a speech he did not attend. The fact Joni was a domestic violence survivor, along with her picture and a caption including her last name, does not meet the requirements of a defamatory statement that is provably false.
Because we conclude Patrick has failed to offer any evidence in support of his defamation claim, we need not address whether the common interest privilege enumerated in Civil Code section 47, subdivision (c), applied. Additionally, Patrick's claim for intentional infliction of emotional distress is based upon the same operative facts as his defamation claim, the failure of which necessarily implies the failure of the emotional distress claim. (Gilbert, supra, 147 Cal.App.4th at p. 34.) Patrick has therefore failed to carry his burden of showing a probability of prevailing on his defamation and intentional infliction of emotional distress claims against Joni.
We next address Patrick's claim the trial court erred by denying his ex parte application for an order shortening time to file and serve a motion to conduct limited discovery. Pursuant to section 425.16, subdivision (g), "[a]ll discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." (§ 425.16, subd. (g).) A trial court's decision as to whether a plaintiff has complied with the requirements of section 425.16, subdivision (g), allowing discovery prior to a hearing on a motion to strike, is reviewed for abuse of discretion. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1061). "'Under this standard the reviewing court will not disturb the trial court's decision unless it "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."' [Citation.]" (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1247 (Tuchscher).)
Patrick ignores the statutory requirements set forth in section 425.16, subdivision (g), which expressly mandate a party seeking to conduct limited discovery to oppose an anti-SLAPP motion file a noticed motion. (Tuchscher, supra, 106 Cal.App.4th at pp. 1247-1248.) "[T]he statute requires both a timely motion and a showing of good cause. Absent either, the request must fail." (Id. at p. 1248.) Patrick never brought a noticed motion to conduct limited discovery. Instead, he moved ex parte for an order shortening time to bring such a motion almost six weeks after Joni filed her anti-SLAPP motion, four months after he filed his complaint. Due to the time delay and the lack of noticed motion, it cannot be said the court abused its discretion.
Even if the ex parte application was procedurally proper, however, Patrick failed to demonstrate sufficient "good cause" within the meaning of section 425.16, subdivision (g). The declaration filed in support of Patrick's ex parte application did not state why the requested discovery was necessary, explain why the discovery had not been taken in the months prior to the anti-SLAPP motion being filed, or state an attempt had been made to file the motion in a timely manner. The trial court did not err in denying Patrick's ex parte application.
III
The trial court's order granting Joni's anti-SLAPP motion is affirmed. Joni shall recover costs and attorney fees on appeal, the amount of which shall be determined by the trial court.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.