Shivers v. Perret
Filed 6/11/08 Shivers v. Perret CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FRANCIS COYOTE SHIVERS, Plaintiff and Appellant, v. LAURA PAULINE PERRET et al., Defendants and Respondents. | B199774 (Los Angeles County Super. Ct. No. BC358141) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
David L. Minning, Judge. Affirmed.
Passman & Cohen, Sanford M. Passman and H. Jason Cohen for Plaintiff and Appellant.
Orrick, Herrington & Sutcliffe, Kent Goss, Christopher J. Chaudoir and Dimitrios V. Korovilas for Defendants and Respondents.
_________________________
After the divorce of appellant Francis Coyote Shivers (Shivers)[1]and respondent Laura Pauline Perret (Perret),[2]Perret told people, including a reporter for
FACTS[4]
The dissolution proceeding and November 30, 2005, restraining order
Perret petitioned the family court for dissolution at the end of 2004. On November 30, 2005, the family court issued a restraining order that required Shivers to stay away from Perret. The marriage of Perret to Shivers officially ended on February 1, 2006.
The September 28, 2006, article onwww.foxnews.com
On September 28, 2006, an article was published on www.foxnews.com about Perret. It stated that she has been going through an endless nightmare since her divorce from Shivers. Perret and Bebe B., who was divorced from Shivers in 1998, each stated that Shivers stalked them and inflicted upon each of them endless mental distress. They each claim that he terrorized them sexually during their respective relationships. Perret said that because there is no link between family court and criminal court, Shivers can commit perjury. He can put illegally gotten e-mails and false declarations into the court record. When Perret took her house back from Shivers, it had been vandalized. She discovered that Shivers had hacked into her computer.[5]
The November 30, 2006, renewal of the restraining order
Perret filed a motion to enforce the dissolution judgment, recover sanctions and extend the restraining order. In her supporting declaration, Perret stated that when she was living with Shivers, he chased her around the house and threatened her. She had to leave for her safety and request a restraining order. After the restraining order was granted on November 30, 2005, Shivers moved out of the house. She moved back into her house and found that the walls had been marked with permanent marker. Someone had drawn stars and smiley faces on them. Also, someone had drawn on the grout between the 1940s glass brick wall in the dining room, and had covered the entire house with star stickers Shivers considers his trademark. The stickers were inside door frames, inside the chandelier, on all the furniture, light switch covers, window sills, towel racks, and on Perrets guitars. (Shivers had placed similar stars all over Perrets previous house, and had stated that if she ever left him, the stars would haunt her for the rest of her life.) Glitter in the shape of stars was in the clothes hamper, the seat cushions, and all over the carpet. Shivers left love notes throughout the house, which was a violation of the prior restraining order, and he left stacks of nude pictures of himself around the house. Under the floor mat of her home office, he left a copy of early dissolution papers, a wedding card, a razor blade, and lyrics to a song that includes the words you can never go home again. He also left lyrics to a song he wrote called Youre Mine. He wrote the song during their marriage and stated that the song was about him stalking her before they started seeing each other.
Continuing on, Perret declared that Shivers painted her bedroom with glow in the dark paint, and he carved the letter C into walls, doorframes, appliances and cabinets in at least 30 places. Though the judgment required him to leave Perrets journals and papers at the house, he told Perrets representative he had shipped the journals and papers to Canada. After the dissolution was final, Shivers began using Perrets doctor and dentist, and he even got a post office box at the same place where Perret has a post office box. He harassed Perrets friends and attempted to get them to sign declarations against her.
Angela G. also submitted a declaration. She declared that during several months in 2004, Shivers raped her, hit her, branded her with the letter C and a star, and threatened to kill her. There were times when he would force her into the trunk of his car and take her to his home. One time he beat her 38 times because it took her 38 seconds to get out of the trunk.
Perrets second declaration, which accompanied her reply, explained that she submitted Angela G.s declaration because it was directly relevant to my fear and apprehension of [Shivers]. Perret also stated: [Shivers] did not dispute that he told [Angela G.] to wear her hair like mine, or that he gave her my clothes to wear. [Angela G.s] declaration is relevant because it confirms that he is capable of violence and that he appears to be very much still obsessed with me. Also, according to Perret, [Angela G.] looks very much like me. She could be my twin sister. This, Perret claimed, was evidence of Shiverss sick obsession with her. In Perrets view, Angela G. is yet another victim of [Shiverss] insanity and abuse of women, and Shivers has no respect for women or victims of sex crimes. Regarding sexual abuse, Perret stated that she was inspired by [Angela G.s] candid accounts of [Shiverss] sexual abuse, which I also experienced, but was too afraid to document in public record because of my status as a public person.
On November 30, 2006, the family court renewed the restraining order for five years. In connection with its ruling, the family court made various findings, including: Shiverss behavior toward Perret is frightening, antisocial and forms a pattern of abuse; Shiverss insidious behavior in marking Perrets house with stars and Zs[6]is stalking; Shiverss actions in leaving Perrets house branded and marked were done to disturb Perrets peace of mind; there is no contrary evidence that Shivers marked the house just like he was writing [Perret] a letter, that it was threatening, that it was a communication, that it was a harassment, and that it further supports extending the restraining order.
The first amended complaint
Shivers alleged that Go Lightly owns and operates www.pauleyp.com, a Web site that accused Shivers of stealing all of Perrets belongings, illegally hacking into her computer to steal her identity and the identities of the visitors to www.pauleyp.com, and creating a Web site to disseminate false information about Perret. On www.pauleyp.com, Perret referred to Shivers as a con artist, an abuser, a devil, evil, a looter, a thief, a petty thief, a hacker, and a criminal. Later, Perret published statements on www.wikipedia.com and claimed that she was desperately trying to get away from her abusive ex-husband who lies about her anywhere and to anyone he can. In the fall of 2006, Perret was interviewed for an article that appeared on www.foxnews.com. In that article, Perret accused Shivers of being involved in perjury, theft, rape, sexual and physical abuse, stalking and vandalism.
The statements were false and published with malice. Perret and Go Lightly defamed Shivers. In so doing, they intentionally and negligently caused Shivers to suffer emotional distress.
The anti-SLAPP motion
According to Perrets special motion to strike the first amended complaint, she did not make many of the statements alleged by Shivers. As for the statements she did make, they were either true or privileged or they did not reference Shivers by name. Based on these assertions, she argued that Shiverss defamation action should be dismissed pursuant to Code of Civil Procedure section 425.16.[7] In her view, the speech alleged comes under the anti-SLAPP statute because it involved issues under consideration by a judicial body in her dissolution proceeding and in an assault and sexual battery action filed by Angela G. Additionally, Perret argued that her speech involved a matter of public interest because it pertained to protecting women from abusive relationships. According to Perret, Shivers is a public figure, which means that he must prove actual malice. She posited that because she believed her statements, malice is not present. Also, she argued that her statements were both fair comment and nonactionable opinion. Last, Perret argued that each cause of action was barred by the litigation privilege.
In opposition, Shivers argued that the parties dissolution is not a matter of public interest, and Perrets speech did not involve an issue under consideration by a judicial body. Also, the litigation privilege does not apply because the statements have no logical connection to a court proceeding. In his view, he is not a public figure, so he does not have to prove actual malice. He disputed Perrets contention that her statements were protected as fair comment because her speech contained statements of fact rather than statements of opinion.
The motion was granted. The trial court concluded that the statements in the www.foxnews.com article were made in a public forum and in connection with the dissolution proceeding. The trial court also concluded that Shivers is a public figure, so statements about him are matters of public interest, and that any statements relating to domestic violence implicate public interest. Next, the trial court ruled that the litigation privilege protected many of Perrets statements, and that Shivers could not show that he was the subject of other statements. Regarding the defamation claim, the trial court concluded that Shivers could not prove that Perret made the statements with malice.
The action was dismissed.
This timely appeal followed.
DISCUSSION
In delineating the scope of this appeal, Shivers states that he will focus on whether the trial court properly granted the anti-SLAPP motion regarding statements made by Perret in the article published on September 28, 2006, on www.foxnews.com, accusing Shivers of being involved in criminal activities including but not limited to illegal sexual conduct. Our analysis is below.
I. Standard of review.
We review the trial courts rulings on a SLAPP motion independently under a de novo standard of review. [Citation.] (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)
II. Overview of the law pertaining to anti-SLAPP motions.
Section 425.16, subdivision (b)(1) provides: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. Subdivision (e) of section 425.16 provides: . . . act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Analyzing an anti-SLAPP motion requires two steps. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The defendant bringing the special motion to strike must make a threshold showing that the anti-SLAPP statute applies to the allegations in the pleading. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once a moving defendant has met its burden, the plaintiff has the burden of establishing a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567568.)
III. Application of section 425.16, subdivision (e)(2).
According to Shivers, the statements Perret made in the www.foxnews.com article were not made in connection with an issue under consideration by a judicial body. We put this contention to the test.
A. Perjury.
In the www.foxnews.com article, Perret said that because there is no link between family court and criminal court, Shivers can commit perjury, and he can place false declarations into the court record. Did the family court proceeding involve an issue of perjury? In her reply declaration in support of the petition for renewal of the restraining order, Perret stated: Because of the amount of fabrications in Shivers[s] declaration, I will respond specifically to each false accusation and include foundation for what I have said. Shivers makes no attempt to explain why Perrets reply declaration did not raise the issue of perjury, and why the issue of perjury was not under consideration by the trial court. In fact, his opening brief does not address the perjury accusation at all. It is not our responsibility to develop an appellants argument. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) Furthermore, arguments not made are deemed waived or abandoned. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) Thus, we conclude that this portion of the appeal was abandoned.
B. Theft.
Though Shivers alleges that Perret accused him of theft in the article that appeared on www.foxnews.com, no theft accusation appears in the copy of the article that he provided in the appellants appendix. We note that in Perrets declaration below, she said that Shivers claimed that he shipped her journals and papers to Canada. This suggests an act of theft. In any event, Shivers fails to argue that the purported theft statement escapes the anti-SLAPP statute. As a result, we once again find that an issue has been waived by Shiverss silence.
C. Stalking.
Perret told the www.foxnews.com reporter that she was being stalked by Shivers. Then, when requesting a renewal of the restraining order, Perret declared that Shivers vandalized her home, he started using her doctor and dentist, and he got a post office box at the same station where she had a post office box. At the November 30, 2006, hearing, the family court found that Shiverss vandalism of Perrets home was stalking. This issue, it appears, was considered by the family court. Also, Shivers once again let his arguments lapse.
D. Vandalism.
In the www.foxnews.com article, Perret accused Shivers of vandalism. She detailed his vandalism in her declaration below. The family court found that Shivers branded and marked Perrets home. Seeing that Shivers ignores this vandalism accusation, we can ignore it, too.
E. Rape, sexual abuse, physical abuse.
During her interview for the www.foxnews.com article, Perret claimed that Shivers had terrorized her sexually. In her reply declaration below, she claimed she suffered sexual abuse by Shivers. Still, he argues that the issue of sexual abuse was not under consideration by the family court.
On page 4 of his opening brief, Shivers states that Perrets moving papers below averred the following: (1) [M]any of [Perrets] statements in the [www.f]oxnews.com article relate to a complaint filed by [Angela G.] against Shivers in Los Angeles County on July 20, 2006. In the complaint, [Angela G.] accused Shivers of assault, battery, sexual battery, and intentional infliction of emotional distress. . . . At the time [Perret] discussed [Angela G.s] allegations in the [www.f]oxnews.com interview, they were at issue before the Superior Court of Los Angeles and therefore also fall under [section 425.16, subdivision (e)(2)]. (2) [E]very alleged statement mentioned in the complaint involves [an] issue under consideration by the Family Court, particularly during the hearings on the restraining order against Shivers. (3) [Shivers] beat [Angela G.] 38 times. . . . Over several months, he would force [her] into the trunk of his [car], take [her] back to his place and force [her] to have sex.
Shivers complains that the trial court states in its Notice of Ruling that [Perret] argued that her comments were made in connection with an issue under consideration by a judicial body. However, there is no record of [Perret] arguing to the Family Law Court that [Shivers] . . . had ever sexually abused her, let alone beating her 38 times or forcing her into the trunk of his car, taking her back to his place and forcing her to have sex with him. He adds: [I]n reviewing the moving papers[] upon which [the trial court] predicated [a] . . . restraining order [against Shivers], [it] declined to consider a declaration submitted by [Angela G.]
These arguments are unavailing. They ignore Perrets reply declaration, which accused Shivers of sexual abuse. Shivers makes no attempt to explain why this was not an issue under review by the family court. Moreover, Perret did not accuse Shivers of beating her 38 times, forcing her into the trunk of his car, or forcing her to have sex with him. Those were Angela G.s allegations. Though there was some reference to Angela G.s accusations in the www.foxnews.com article, they were not attributed to Perret. As a result, we need not consider them.
IV. Other issues.
Shivers argues that section 425.16, subdivisions (e)(3) and (4) do not apply, and that the litigation privilege does not apply. He also argues that he is likely to prevail on the issue of malice. But insofar as our preceding analysis establishes that the dismissal must be affirmed, all other issues are moot.
DISPOSITION
The dismissal is affirmed.
Perret and Go Lightly shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________, J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
CHAVEZ
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[1] Shivers is publicly known as Coyote Shivers.
[2] Perret is publicly known as Pauley Perette.
[3] All further references to this Web site are as of September 28, 2006.
[4] Shivers violated California Rules of Court, rule 8.204(a)(2)(C) by failing to provide a summary of the significant facts in the record. Also, Shivers violated California Rules of Court, rule 8.144(a)(1)(D) by failing to consecutively number the pages in the appellants appendix. Shiverss citation to exhibits and internal numbers within the exhibits is not proper appellate practice. As a result, our statement of facts is limited to facts referenced by Perret in her brief or which otherwise appear in Perrets respondents appendix.
[5] The article contains other unflattering statements about Shivers, but they are not attributed to Perret. Some statements are attributed to Bebe B. The article indicated that a woman named Angela G. had sued Shivers for sexual battery, alleging several episodes of rape and sodomy. According to the article, these allegations are public record.
[6] The reporters transcript says Zs but it was probably Cs.
[7] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
