Carol C. Neumann & Dancing Deer Mountain, LLC v. Liles

• Decision Date: 12 March 2014
• Docket Number: A149982.,121103711
• Parties: Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon domestic limited liability company, Plaintiffs–Appellants Cross–Respondents, v. Christopher LILES, Defendant–Respondent Cross–Appellant.
• Court: Oregon Court of Appeals

261 Or.App. 567

323 P.3d 521

Carol C. NEUMANN and Dancing Deer Mountain, LLC, an Oregon domestic limited liability company, Plaintiffs–Appellants Cross–Respondents,

v.Christopher LILES, Defendant–Respondent Cross–Appellant.

121103711; A149982.

Court of Appeals of Oregon.

Argued and submitted April 12, 2013.

Decided March 12, 2014.

Steve C. Baldwin argued the cause for appellants-cross-respondents. With him on the briefs was Watkinson Laird Rubenstein Baldwin & Burgess, P.C.

Linda K. Williams argued the cause and filed the briefs for respondent-cross-appellant.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and LAGESEN, Judge.^*

LAGESEN, J.

After attending a wedding at plaintiff Dancing Deer Mountain, LLC, a wedding venue co-owned and operated by plaintiff Carol Neumann and her husband, Timothy Benton, defendant Christopher Liles posted a negative review on google.com. In the review, defendant characterized the venue as a “disaster” and Neumann as “two faced, crooked, and * * * rude to multiple guest[s].” He stated further that Neumann and her husband “changed the rules as they saw fit” by informing guests that they needed to leave the premises earlier than they had originally been told, and that Neumann would find a way to retain any security deposit and charge even more money for use of the facility. Neumann and Dancing Deer Mountain sued defendant, with Neumann asserting claims for defamation and invasion of privacy by false light, and Dancing Deer Mountain asserting claims for intentional interference with economic relations and invasion of privacy by false light. On defendant's motion, the trial court dismissed the case under ORS 31.150,¹ Oregon's anti-Strategic Lawsuits against Public Participation (anti-SLAPP) statute, concluding both that plaintiffs' claims fell within the scope of ORS 31.150(2), making them subject to the anti-SLAPP procedures, and that plaintiffs failed to establish a prima facie case in support of any of their claims, as required by ORS 31.150(3). We reverse, concluding that the trial court erred when it determined that Neumann had not established a prima facie case in support of her defamation claim.

I. BACKGROUND ²

Defendant attended a wedding at Dancing Deer Mountain. During the event, tensions arose between Dancing Deer Mountain staff, including Neumann, and the wedding party and guests, after staff observed attendees consuming alcohol in a manner that violated Dancing Deer Mountain's alcohol policy. Those tensions were exacerbated when, at approximately 8:30 p.m. on the night of the wedding, Neumann and her staff began asking guests to leave, in accordance with Dancing Deer Mountain's requirement, contained in its rental agreement, that the wedding party and guests vacate the premises by 8:30 p.m.

Two days after the wedding, defendant posted a review of Dancing Deer Mountain on google.com. The review, which was entitled “Disaster!!!!! Find a different wedding venue,” stated:

“There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn't raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn't like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [ sic ] to keep your $500 deposit, and will try to make you pay even more.”

Plaintiffs sued defendant, alleging that by publishing the review, defendant committed the torts of defamation and invasion of privacy by false light against Neumann, and the torts of intentional interference with economic relations and invasion of privacy by false light against Dancing Deer Mountain. Defendant filed a special motion to strike all claims under ORS 31.150. Defendant's theory was that his online review qualified as either a “written statement * * * presented * * * in a place open to the public or a public forum in connection with an issue of public interest,” ORS 31.150(2)(c), or, alternatively, “other conduct in furtherance of the exercise of * * * the constitutional right of free speech in connection with a public issue or an issue of public interest,” ORS 31.150(2)(d), thereby making the anti-SLAPP procedures applicable to plaintiffs' claims, which arose out of defendant's online review. In response, plaintiffs submitted evidence to support a prima facie case on their claims, in accordance with ORS 31.150(3). Plaintiffs also argued that the anti-SLAPP procedures should not apply to their claims because their claims did not target speech in connection with government: “Anti–SLAPP statutes were created to allow for unfettered speech in matters of governmental gatherings. They were not intended to apply to cases such as this.”

Following a hearing, the trial court granted the special motion to strike in full. The court entered a general judgment dismissing the complaint without prejudice, and awarding $8,000 in attorney fees, $337 in costs, and a $500 prevailing party fee to defendant. Plaintiffs timely appealed, and defendant timely cross-appealed. On appeal, plaintiffs assert that the trial court erred in two respects: by concluding that their action was subject to the anti-SLAPP procedures, and by concluding that Neumann had not established a prima facie case of defamation. On cross-appeal, defendant contends that the trial court erred by awarding him less than the full amount of attorney fees that he requested.

II. STANDARD OF REVIEW

A “two-step burden-shifting process” governs the resolution of a special motion to strike under Oregon's anti-SLAPP statute, ORS 31.150. Young v. Davis, 259 Or.App. 497, 501, 314 P.3d 350 (2013). In accordance with ORS 31.150(3), a court must first determine “whether the defendant has met its initial burden to show that the claim against which the motion is made ‘arises out of one or more protected activities described in [ORS 31.150(2) ].” Id. Second, if the defendant meets that burden, the court must determine whether the plaintiff has “establish[ed] that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.” Id. (internal quotation marks omitted). Each step of that process presents a question of law. See Young, 259 Or.App. at 507–10, 314 P.3d 350 (whether the plaintiff has established a probability of prevailing presents a legal question); Blackburn v. Brady, 116 Cal.App.4th 670, 676, 10 Cal.Rptr.3d 696 (2004) (whether anti-SLAPP statute “applies to a particular complaint[ ] presents a legal question”). ³ Accordingly, we review for legal error a trial court's ruling on an ORS 31.150 special motion to strike. See Young, 259 Or.App. at 510, 314 P.3d 350 (reviewing for legal error trial court's determination that the plaintiff's evidence did not establish a prima facie case); see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., 122 Cal.App.4th 1049, 1056, 18 Cal.Rptr.3d 882 (2004) (“We independently determine whether a cause of action is based upon activity protected under the statute, and if so, whether the plaintiff has established a reasonable probability of prevailing.”); Blackburn, 116 Cal.App.4th at 676, 10 Cal.Rptr.3d 696 (same).

III. ANALYSIS

As noted, plaintiffs contend that the trial court erred at both steps of the process governing the resolution of a special motion to strike. They argue that “[p]laintiffs' complaint is not a SLAPP suit,” and that the trial court therefore erred by concluding that their complaint was subject to dismissal under ORS 31.150. Plaintiffs argue further that, even if their complaint falls within the scope of Oregon's anti-SLAPP statute, the trial court erred when it concluded that Neumann had not presented substantial evidence establishing a prima facie case of defamation. For the reasons explained below, we do not resolve the first alleged error identified by plaintiffs, but agree that the trial court erred when it concluded that Neumann had not established a prima facie case of defamation sufficient to withstand dismissal under ORS 31.150. Accordingly, we reverse.

With respect to the first alleged error identified by plaintiffs-the trial court's determination that plaintiffs' claims were subject to the anti-SLAPP procedures—plaintiffs do not offer a focused argument on appeal as to why defendant's online review does not fall into one of the four categories of protected activities delineated in ORS 31.150(2). In particular, plaintiffs do not address defendant's theory that his review was a statement “in connection with an issue of public interest” published in “a place open to the public or a public forum” under ORS 31.150(2)(c). In fact, plaintiffs do not address the terms of the statute at all, or argue that the text, context, and legislative history demonstrate that the legislature did not intend for online reviews such as the one at issue here to fall within the scope of ORS 31.150(2)(c) or, alternatively, ORS 31.150(2)(d). Instead, relying primarily on law review articles and Illinois cases interpreting the Illinois anti-SLAPP statute ⁴ —a statute that is worded differently from, and more narrowly than, ORS 31.150—plaintiffs assert that we “should rule in accordance with [those] authorities * * * and reverse the trial court” and that “[t]he same reasoning should apply to the interpretation of every anti-SLAPP statute.”

We recently declined to address a similar argument in Young under similar circumstances, where, as...