Bryant v. Recall for Lowell's Future Comm.

• Court: Oregon Court of Appeals
• Writing for the Court: ARMSTRONG, P.J.
• Citation: Bryant v. Recall for Lowell's Future Comm., 286 Or App 691, 400 P.3d 980 (Or. App. 2017)
• Decision Date: 12 July 2017
• Docket Number: A156876
• Parties: Pam BRYANT, Plaintiff-Appellant, v. RECALL FOR LOWELL'S FUTURE COMMITTEE, Kenneth Hern, and Nancy Garratt, Defendants-Respondents.

286 Or.App. 691

400 P.3d 980

Pam BRYANT, Plaintiff-Appellant,

v.RECALL FOR LOWELL'S FUTURE COMMITTEE, Kenneth Hern, and Nancy Garratt, Defendants-Respondents.

A156876

Court of Appeals of Oregon.

Argued and submitted January 11, 2016.

July 12, 2017

David Bahr argued the cause for appellant. With him on the briefs was Bahr Law Offices, P.C.

Edmund J. Spinney argued the cause and filed the briefs for respondents.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

ARMSTRONG, P.J.

Plaintiff is a former city councilor for the city of Lowell. Defendant Recall for Lowell's Future Committee is a petition committee that was organized to support the recall election against plaintiff. Defendant Hern was the chief petitioner for that effort, and defendant Garratt is the committee's treasurer. After the election, which plaintiff lost, plaintiff brought suit under ORS 260.532, alleging that defendants had violated that statute by making seven factually false statements in election materials in support of plaintiff's recall. Defendants moved to strike the complaint under ORS 31.150, Oregon's "anti-SLAPP" statute. The trial court granted that motion and dismissed the case. Plaintiff appeals. Because we conclude that plaintiff did present a prima facie case, as required to defeat an anti-SLAPP motion to strike, with respect to four of the seven statements, we reverse and remand in part and otherwise affirm. As a result, we also reverse the supplemental judgment awarding costs and attorney fees to defendants under ORS 31.152.

Under ORS 31.150, a court engages in a two-step burden-shifting process to resolve a special motion to strike. Young v. Davis , 259 Or.App. 497, 501, 314 P.3d 350 (2013). First, the court must determine whether the defendant has met the burden to show that the claim " 'arises out of' one or more protected activities described in subsection (2)." Id. The parties agree that defendants met that burden in this case. Thus, this case turns on the second step, where "the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case." ORS 31.150(3). We review a trial court's grant of a special motion to strike for legal error. Plotkin v. SAIF , 280 Or.App. 812, 815, 385 P.3d 1167 (2016), rev. den. , 360 Or. 851, 389 P.3d 1141 (2017).

Because the question we must answer is whether plaintiff's evidence was sufficient to establish a prima facie case, we state the facts in the light most favorable to plaintiff. Handy v. Lane County , 360 Or. 605, 608 n. 1, 385 P.3d 1016 (2016). That means "we consider plaintiff's evidence and draw the reasonable inferences from that evidence in favor of plaintiff." Plotkin , 280 Or.App. at 815-16, 385 P.3d 1167. Where there is a factual conflict in the evidence, we adopt the version that is most favorable to plaintiff, as long as it is supported by sufficient evidence. Id. We will consider defendants' opposing evidence "only to determine if it defeats plaintiff's showing as a matter of law." Id. (quotation marks and brackets omitted). We start by describing the uncontested procedural facts of this case, and then, in our analysis, turn to the facts as provided in the pleadings and the supporting and opposing declarations and exhibits submitted to the trial court, ORS 31.150(4), viewing that evidence in the light most favorable to plaintiff.

Plaintiff was a city councilor for the city of Lowell. In December 2013, she was defeated in a recall election for her position. Defendant Hern, as chief petitioner for plaintiff's recall, had signed a recall petition containing "statements of reasons for demanding [a] recall," and which was used to obtain voter signatures to support a recall. Before the election, defendants also sent to voters in Lowell a flyer entitled "Facts and Information about Pam Bryant and Gary Reese." Defendants sent the flyer for the purpose of persuading voters to vote in favor of plaintiff's recall. Following the election, plaintiff brought a complaint against defendants claiming that they had violated ORS 260.532¹ because the petition and flyer contained seven false statements and defendants either knew, or recklessly disregarded, "that their messages presented factually false statements that were intended to mislead voters in the recall election and cause [plaintiff's] defeat." Those seven statements are as follows:

1. "[Plaintiff] inferred [sic ] City Administrator Chuck Spies was involved in missing city money. Her false inference [sic ] nearly cost the city $20,000 for an investigation and a law suite [sic ] against the City."

2. "[Plaintiff] cost the City money by calling the City Attorney without the authorization to do so."

3. "[Plaintiff] was then fined by the State of Oregon for not following the rules for her publication 'The Voice.' "

4. "[Plaintiff] has recklessly charged city staff with unsupported allegations, and thus placed the city at risk of ruining people's careers and reputations with no foundation, all of which necessitated $1,927.00 of unbudgeted expenditures for legal fees."

5. "[Plaintiff] incorrectly asserts that she formed 'Save-Our-Schools Lowell' to raise money for our schools."

6. "Save-Our-Schools Lowell does not exist."

7. "[Plaintiff] made a personal recording of a city council executive session meeting in violation of state law."

In response to the complaint, defendants filed a special motion to strike under ORS 31.150, Oregon's anti-SLAPP statute. With regard to plaintiff's prima facie case, defendants admitted that they had published the statements. They contested, however, that the statements were of fact, false, or material, and that they knew the statements were false or recklessly disregarded the truth or falsity of the statements. Defendants submitted declarations and exhibits to support their assertions. In response, plaintiff argued that defendants' special motion to strike should be dismissed because they had failed to comply with UTCR 5.010, which requires a moving party to confer with the other party before filing a motion under ORCP 21 and requires the moving party to file a certificate of compliance with the rule. Plaintiff also submitted declarations and exhibits in support of her response, arguing that she had met her burden to establish a prima facie case sufficient to defeat defendants' special motion to strike.

After receiving plaintiff's response, defendants filed a late UTCR 5.010 certificate of compliance. Defendants also asked under UTCR 1.100 that the trial court grant them relief from application of UTCR 5.010 so that they could file the late certificate. Alternatively, defendants argued that UTCR 5.010 does not apply to a special motion to strike filed under ORS 31.150.

At the hearing, the trial court indicated that it did not believe that UTCR 5.010 applied to defendants' motion, but did not otherwise address it. Following the hearing, the trial court issued a written order granting defendants' special motion to strike. The court concluded that plaintiff had not met her burden to establish a prima facie case that the statements were false assertions of fact under the standard for falsity applicable to an ORS 260.532 claim. Accordingly, the trial court dismissed plaintiff's complaint without prejudice, ORS 31.150(1). In a supplemental judgment, the trial court awarded defendants costs and attorney fees under ORS 31.152.

On appeal, plaintiff assigns error to the trial court's grant of defendants' special motion to strike, both on the ground that the trial court was required to deny the motion under UTCR 5.010 and on the ground that she had established a prima facie case, under ORS 31.150. Plaintiff also appeals the supplemental judgment awarding defendants costs and attorney fees. We first address plaintiff's arguments based on UTCR 5.010.

I. UTCR 5.010

UTCR 5.010 provides, in part:

"(1) The court will deny any motion made pursuant to ORCP 21 and 23, except a motion to dismiss: (a) for failure to state a claim; or, (b) for lack of jurisdiction, unless the moving party, before filing the motion, makes a good faith effort to confer with the other party(ies) concerning the issues in dispute.

"* * * * *"(3) The moving party must file a certificate of compliance with the rule at the same time the motion is filed. The certificate will be sufficient if it states either that the parties conferred or contains facts showing good cause for not conferring."

Plaintiff argues that defendants were required to comply with UTCR 5.010 because ORS 31.150(1) provides that "[t]he special motion to strike shall be treated as a motion to dismiss under ORCP 21 A" and that the trial court was required to dismiss defendants' motion when they failed to comply with UTCR 5.010.

We disagree. By its plain terms, UTCR 5.010 applies to a motion "made pursuant to ORCP 21." A motion "made pursuant to ORCP 21" is a motion that raises the substantive issues listed in ORCP 21. See ORCP 21 A ("[T]he following defenses may at the option of the pleader be made by motion to dismiss: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) that there is another action pending between the same parties for the same cause, (4) that plaintiff has not the legal capacity to sue, (5) insufficiency of summons or process or insufficiency of service of summons or process, (6) that the party asserting the claim is not the real party in interest, (7) failure to join a party under Rule 29, (8) failure to state ultimate facts sufficient to constitute a claim, and (9) that the pleading shows that the action has not been commenced within the time limited by statute."); ORCP 21 B (motion for judgment on the pleadings); ORCP 21 D (motion to make more definite and certain); ORCP 21 E (motion to strike "any sham, frivolous, or irrelevant" pleading, defense, or matter inserted in pleading).

That UTCR 5.010...