Tuesday, January 31, 2017
Suit Over Anti-Domestic Violence Speech Held SLAPP
By KENNETH OFGANG, Staff Writer
A lawsuit by a man who claims his ex-wife defamed him in a speech she gave at a fundraiser for an anti-domestic violence group was properly stricken under the anti-SLAPP statute, the Fourth District Court of Appeal has ruled.
Div. Three Friday affirmed the order tossing the suit by Patrick Percoski, who claimed that ex-wife Joni Percoski lied when she told of physical abuse she claimed to have suffered when she spoke at the event sponsored by Human Options at the Westin South Coast Plaza in 2013.
The Orange County Register covered the event. Its story emphasized a speech by celebrity physician Dr. Drew Pinsky.
It also told of a “survivor speaker, Joni, who does not feel safe using her last name, could not even talk about it with her doctor—her personal physician at the time was Pinsky.”
“Her riveting tale of fear and eventual escape held the audience rapt. ‘My daughter is the one who got me out,’ she said during the reception, introducing a now happy and healthy Taylor Marie, a 16-year-old aspiring actress.”
The article was accompanied by a photo of Joni Perkoski and her daughter with Pinsky. The caption identified them as “Joni Perkoski” and “Taylor Marie Perkoski.”
Patrick Perkoski alleged in his complaint that he never abused his ex-wife, or anyone else, and that her remarks at the luncheon amounted to an accusation that was false and defamatory.
Joni Perkoski’s declaration in support of her anti-SLAPP motion claimed that her ex-husband abused her emotionally, verbally, and physically. She said she had been in therapy, and that the therapist referred her to Human Options for support.
Her speech at the event, she said, was designed to encourage financial support for Human Options by focusing on its therapeutic role. She said she did not focus on her own abuse and did not refer to her ex-husband by name.
Orange Superior Court Judge Gregory Lewis granted the motion, saying the suit implicated free speech rights and that the plaintiff failed to show a likelihood of prevailing. On appeal, the plaintiff conceded the first issue but argued he had presented sufficient evidence of actionable defamation.
Presiding Justice Kathleen O’Leary, however, in her unpublished opinion for the Court of Appeal, said the claims failed on the face of the complaint. Patrick Perkoski, she said, failed to identify the specific statements that were defamatory or to offer a first-hand explanation of what his ex-wife said about him.
He had, the jurist explained, offered only his belief that she defamed him, based on the content of the newspaper story, which was inadmissible hearsay. O’Leary said the plaintiff “ignored the key issue—the statements in the article were made by the author of the article and not by Joni,” and failed to attach a declaration by the author or by someone else who was present at the event.
“Barring this, Patrick could not offer the article for the truth of the matter asserted,” the presiding justice wrote. She added that “[t]here was no evidence, in the article or otherwise, that Joni made any defamatory statement against Patrick,” and that the allegations of the complaint were “just speculation and conjecture about what may or may not have been said at a speech he did not attend.”
O’Leary also rejected the plaintiff’s claim that he should have been allowed to conduct limited discovery in order to oppose the anti-SLAPP motion. She noted that he never filed a motion for such discovery, as required by the statute, filing only an ex parte application to shorten time to file the motion.
Even if the ex parte application were treated as complying with the noticed-motion requirement, she added, it would have been deficient for failing to show good cause. The plaintiff, she said, never explained why he waited six weeks to seek discovery after the filing of the anti-SLAPP motion, nor did he offer reasons for not seeking discovery in the months between the service of the complaint and the filing of the defendant’s motion.
The case is Percoski v. Percoski, G051487.
Copyright 2017, Metropolitan News Company