Annette F. v. Sharon S.

• Decision Date: 28 June 2004
• Docket Number: No. D041872.,D041872.
• Citation: 15 Cal.Rptr.3d 100,119 Cal.App.4th 1146
• Court: California Court of Appeals Court of Appeals
• Parties: ANNETTE F., Plaintiff and Respondent, v. SHARON S., Defendant and Appellant.

15 Cal.Rptr.3d 100

119 Cal.App.4th 1146

ANNETTE F., Plaintiff and Respondent, v. SHARON S., Defendant and Appellant.

No. D041872.

Court of Appeal, Fourth District, Division 1.

June 28, 2004.

Review Denied October 13, 2004.

Gray Cary Ware & Freidenrich and Guylyn R. Cummins, San Diego, for Defendant and Appellant.

Shopoff & Cavallo, Jeffrey W. Shopoff and Kathleen A. McKinley for Plaintiff and Respondent.

AARON, J.

This case is a spin-off of the highly publicized and controversial litigation over the validity of "second-parent" adoptions¹ in Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 2 Cal.Rptr.3d 699, 73 P.3d 554. In this matter, Sharon S. (Sharon) appeals from an order denying her special motion to strike a libel complaint filed against her by her former partner in a lesbian relationship, Annette F. (Annette). We conclude that Annette's complaint arises from protected speech activity by Sharon within the scope of the anti-SLAPP statute, and that Annette has failed to establish a probability of prevailing on her libel claim against Sharon. (Code Civ. Proc.,² § 425.16, subds. (b)(1), (e).) Accordingly, we reverse the order denying Sharon's special motion to strike the complaint and remand with directions to grant the motion and enter judgment in Sharon's favor.

I FACTUAL AND PROCEDURAL BACKGROUND

A. Relationship Between Sharon and Annette

Sharon and Annette met at Harvard Business School and began dating in 1989. They were in a committed relationship from 1989 through mid-2000. After graduating from business school, they moved to San Diego in 1990. Their relationship was volatile, and each ultimately accused the other of engaging in physical and verbal abuse.

In 1992, Sharon and Annette held a public commitment ceremony. They both wore bridal gowns during the ceremony. Their commitment ceremony was covered by the local television news, the San Diego Union Tribune, and the Los Angeles Times.

Sharon and Annette sent an announcement of their ceremony to the local Jewish press. The San Diego Jewish Press published an article about the ceremony. Many angry letters were sent to the newspaper in response to the article. The ensuing controversy led to further coverage in the mainstream media.

Sharon and Annette set up a Web site on which they posted information about their commitment ceremony and accompanying photographs. Their Web site included a discussion of the press coverage, and also included information about gay couples raising children and information regarding second-parent adoptions.

In 1995, Sharon and Annette published a book entitled Straight Jobs Gay Lives: Gay and Lesbian Professionals, The Harvard Business School, and the American Workplace. The book was based on interviews with 100 gay and lesbian alumnae of Harvard Business School. Annette was quoted in several discussions of the book that appeared on the Internet.

In October 1996, after being artificially inseminated with sperm from an anonymous donor, Sharon gave birth to a son, Zachary. Annette successfully petitioned the court to adopt Zachary as a second parent.

Shortly after Zachary's birth, Sharon and Annette appeared on ABC's Turning Point with Diane Sawyer, as one of four featured couples in a nationally broadcast show on gay and lesbian marriage. Annette's parents were also interviewed on the program. In an announcement about the show sent to friends and family, Annette explained:

"Our motive is to put forth a positive image of a stable and loving lesbian relationship.... Through this TV show, we also hope to help other gay people who could benefit from seeing positive role models. We also hope that this program will enlighten hateful people in our society who [attack] gay people as a group and fail to see that we are individuals with aspirations of building loving relationships and who want to share their love by bringing another being into this world."

The Turning Point show featured footage of the commitment ceremony, and a discussion of Zachary's birth and Annette's adoption of Zachary. The program was covered in the national news media, including the New York Times, USA Today, and other newspapers.

In June 1999, after being artificially inseminated again, Sharon gave birth to another son, Joshua. Sharon and Annette signed an adoption agreement for Annette to adopt Joshua as a second parent.

In July 2000, Sharon and Annette got into an argument while driving on a freeway in Nebraska. The children were in the backseat at the time. Sharon was verbally taunting Annette, who was driving the car. Annette backhanded Sharon in the mouth. Sharon hit Annette back. Annette later admitted that she had provoked the physical contact by hitting Sharon in the face. Sharon suffered injuries as a result of the incident.

Sharon and Annette separated in August 2000. In September 2000, Sharon and Annette had another argument during an exchange of the children. Annette kicked the door of Sharon's home. According to Sharon, the door hit her in the arm and gave her a bruise. Sharon called the police, who took statements from Sharon and Annette. A child protective services worker subsequently investigated whether Annette or Sharon had subjected the children to emotional abuse by causing them to witness the incident. She concluded that "allegations of emotional abuse" were "substantiated" as to Annette and "inconclusive" as to Sharon.

On September 26, 2000, Sharon obtained a temporary restraining order against Annette, pending a hearing pursuant to the Domestic Violence Prevention Act. (Fam.Code, § 6200, et seq.) On December 5, 2000, the court held an evidentiary hearing on the matter. Sharon and Annette were both present at the hearing. At the hearing, the court made a finding that Annette had perpetrated domestic violence against Sharon. On February 26, 2001, the court issued a written order granting Sharon's request for a three-year restraining order against Annette.³

On October 24, 2001, Annette contacted Joshua's attorney, Terence M. Chucas, and made "allegations" that Joshua had developed "self-mutilating" behaviors. She reported that she had observed Joshua hitting himself after being bothered or struck by his older brother, Zachary. Annette stated that she believed Joshua was being bothered or struck on a frequent basis in Sharon's home. Annette told Chucas that one possible explanation for this behavior was that Zachary may not have been adequately supervised in Sharon's home, because Sharon was absent from home for extended periods. Chucas conducted an investigation and concluded that Annette's concerns were unfounded.

B. The Sharon S. Litigation

In October 2000, Annette filed a motion to adopt Joshua as a second parent. She contended that Sharon's consent to the adoption had become irrevocable and that the adoption was in Joshua's best interest. Sharon responded by moving to withdraw her consent to the adoption and requesting dismissal of Annette's adoption petition. Sharon contended that there was no legal basis for such a second-parent adoption, that her consent had been obtained by fraud or duress, and that withdrawal of her consent was in Joshua's best interest. Joshua's counsel also moved to dismiss the adoption petition.

The trial court denied the motions to dismiss the adoption petition. Sharon filed a petition for writ of mandate, joined by counsel for Joshua, challenging the denial of her motion to dismiss. In her petition, Sharon also challenged a separate order compelling discovery of her communications with her therapist and imposing sanctions against her and her attorney. Numerous organizations filed amicus curiae briefs concerning the validity of second-parent adoptions. On October 25, 2001, this court granted Sharon's writ petition and ruled that, with the exception of stepparent adoptions, there was no statutory basis for an adoption in which a consenting parent does not relinquish all parental rights. The court also found that the discovery issue was moot in light of its determination that Annette's adoption petition had to be dismissed. (Sharon S. v. Superior Court (2001) 93 Cal.App.4th 218, 113 Cal.Rptr.2d 107, rev'd (2003) 31 Cal.4th 417, 2 Cal.Rptr.3d 699, 73 P.3d 554 (this court's Sharon S. decision).)

This court's Sharon S. decision was highly controversial and received widespread coverage in the media and on the Internet. Some of the articles referred to Sharon and Annette as a "prominent" lesbian couple. Many in the gay and lesbian community criticized the opinion and expressed fear that it cast doubt on the validity of thousands of second-parent adoptions. Sharon was widely criticized in the gay and lesbian community for having challenged the validity of second-parent adoptions.

Two days after the opinion was issued, an article in the San Francisco Chronicle quoted Annette as stating, "I don't know if I'm going to see my children ever again." A newly formed nonprofit organization called Second-Parent Adoption Fund began soliciting contributions for Annette to enable her to take her case to the California Supreme Court. On its Web site, the organization characterized the case as a struggle to "protect the legal status of thousands of children who have been adopted by second-parent adoption procedures over the last 15 years in the State of California," and stated that if Annette did not prevail in court, "thousands of children in California could find that their legal relationship with their adoptive parent is vulnerable to attack by another parent, an employer, insurer or state or federal agency." Interested donors were instructed to send checks directly to Annette's mailing address.

On January 29, 2002, the Supreme Court granted Annette's petition for review of this court's Sharon S. decision. The San Francisco Chronicle ran another article quoting Annette's description of the case as follows: "It represents my personal struggle to be recognized as my son's parent (and) a fight for...