March 12, 2014
CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon domestic limited liability company, Plaintiffs-Appellants Cross-Respondents,
CHRISTOPHER LILES, Defendant-Respondent Cross-Appellant
Argued and Submitted: April 12, 2013.
Lane County Circuit Court. 121103711. Charles D. Carlson, Judge.
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.[*]
[261 Or.App. 569] 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, Oregon's anti-Strategic Lawsuits against Public [261 Or.App. 570] 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 
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.
[261 Or.App. 571] 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 [261 Or.App. 572] 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 (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" ). Accordingly, we
review for legal error a trial court's [261 Or.App. 573] ruling on an ORS 31.150 special motion to strike. See Young, 259 Or.App. at 510 (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 (same).
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 [261 Or.App. 574] 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 --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 here, the plaintiff did not develop a sufficiently focused argument
on appeal as to why the allegedly defamatory statements at issue did not fall within the scope of ORS 31.150(2). 259 Or.App. at 505 (observing that it is not " our proper function to make or develop a party's argument when that party has not endeavored to do so itself" (citations and internal quotations marks omitted)). We take the same approach here, both to be consistent with Young and because the trial court's determination that the online business review at issue qualifies as a protected activity under ORS 31.150(2) is not clearly erroneous. Indeed, we note that the trial court's interpretation of ORS 31.150(2) to encompass online business reviews [261 Or.App. 575] appears to be consistent with the plain text of the statute, although we do not assess the ultimate correctness of that interpretation at this time.
We nevertheless conclude that the trial court erred by dismissing Neumann's defamation claim. Contrary to the court's conclusion, the evidence supporting the defamation claim was sufficient to meet the " low bar" established by ORS 31.150 " to weed out meritless claims meant to harass or intimidate" a defendant. Young, 259 Or.App. at 508; see also Staten v. Steel, 222 Or.App. 17, 32, 191 P.3d 778 (2008), rev den, 345 Ore. 618, 201 P.3d 909 (2009) (" The purpose of the special motion to strike procedure, as amplified in the pertinent legislative history, is to expeditiously terminate unfounded claims that threaten constitutional free speech rights, not to deprive litigants of the benefit of a jury determination that a claim is meritorious. " (Emphases in original.)). That is, the evidence submitted by plaintiffs, if credited, would permit a reasonable factfinder to rule in Neumann's favor on the defamation claim, and the evidence submitted by defendant does not defeat Neumann's claim as a matter of law. Young, 259 Or.App. at 508-11.
Under Oregon law, a claim for defamation has three elements: " (1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm." National Union Fire Ins. Co. v. Starplex Corp., 220 Or.App. 560, 584, 188 P.3d 332, rev den, 345 Ore. 317, 195 P.3d 65 (2008). " In the professional context, a statement is defamatory if it is false and ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful business, trade, [or] profession."  Brown v. Gatti, 341 Ore. 452, 458, [261 Or.App. 576] 145 P.3d 130 (2006) (internal quotation marks and citations omitted). Statements falsely alleging facts that are " likely to lead people to question [a] plaintiff's fitness to perform his job" are defamatory per se. L & D of Oregon, Inc. v. American States Ins. Co., 171 Or.App. 17, 25, 14 P.3d 617 (2000) (discussing the holding in Slover v. State Board of Clinical Social Workers, 144 Or.App. 565, 568-69, 927 P.2d 1098 (1996)); see also National Union Fire Ins. Co., 220 Or.App. at 584-85 (statements that would tend to harm a plaintiff in his or her business or profession are actionable per se without proof of special harm).
Here, the evidence submitted by plaintiffs, if true, would permit a reasonable factfinder to find in Neumann's favor on a claim of defamation concerning her profession. Specifically, if true, plaintiffs' evidence could permit a reasonable factfinder to find that defendant published false statements attributing to Neumann conduct and characteristics " incompatible with the proper conduct of [her] lawful business" of operating a wedding venue, as well as a false statement alleging that Neumann is dishonest.
In particular, that evidence demonstrates that defendant published in an online forum  statements alleging that Neumann was " rude to multiple guest[s]," that she " changed the rules" by directing guests to leave at 8:15 p.m. after originally telling guests that they could stay until 9:00 p.m., that Neumann " will find a [way] to keep your $500 deposit, and will try to make you pay even more," and that Neumann is " crooked." Neumann's evidence also provides a basis from which a factfinder could find that defendant's statements were false. Neumann and two others who were present at the wedding that defendant attended submitted affidavits in which they declared that defendant's statements were not true. And a factfinder could find that defendant's online statements impute to Neumann conduct that is incompatible with the proper conduct of the operation of a wedding venue. Couples often intend weddings to be significant, once-in-a-lifetime events that (they hope) will be unblemished by breaches in etiquette and unexpected hitches. As Dancing Deer Mountain's co-owner Benton [261 Or.App. 577] observed in his affidavit, " no one in their own best interest would call a venue who[se] owners" were alleged to have engaged in the conduct that defendant ascribed to Neumann; that conduct is inconsistent with a positive wedding experience.
In addition, a factfinder could find that defendant's statement that Neumann is " crooked," apart from implying that she is not a wedding vendor who can be trusted, alleges that she is dishonest, and would be defamatory for that reason. See Mannex Corp. v. Bruns, 250 Or.App. 50, 52, 57-61, 279 P.3d 278 (2012) (recognizing that statements that the plaintiff " was a 'crook[ ],' that [a third party] should 'never want to do business with [the plaintiff],' and that [the third party] should 'remember that name'" were defamatory, although concluding that the plaintiff's claim for defamation failed because the statements were protected by qualified privilege); Durr v. Kelleher, 54 Or.App. 965, 967-68, 636 P.2d 1015 (1981) (affirming trial court verdict awarding damages on defamation claim where " [t]he court found that [the] defendant had maliciously slandered [the] plaintiff by calling him a 'crook' and a 'dishonest' police officer" ).
Finally, because a factfinder could find that defendant's statements attacked Neumann's professional or business reputation, and, for that reason, would be defamatory per se, plaintiffs were not required to present evidence of special harm to establish a prima facie case of defamation. See National Union Fire Ins. Co., 220 Or.App. at 584-85 (statements are per se defamatory if they " tend[ ] to injure the plaintiff in his or her profession or business" ; only when a statement is not slander per se must a plaintiff allege special harm). Plaintiffs nevertheless did present evidence that would permit a factfinder to find that Neumann was harmed by defendant's statements. Neumann and her co-owner attested to a fairly significant drop in bookings of the venue for weddings almost immediately after the challenged post was made, as well as to expenditures made to mitigate the harm to Neumann's reputation as a wedding-venue operator. A reasonable factfinder could find based on that evidence that Neumann suffered special harm resulting from defendant's statements.
[261 Or.App. 578] Defendant makes several arguments as to why plaintiffs' evidence is insufficient to establish the prima facie case required by ORS 31.150. For the reasons set forth below, we are not persuaded by them.
First, defendant asserts that his statements were nonactionable opinion. " Opinions, as 'statements that cannot reasonably be interpreted as stating actual facts,' are constitutionally protected." Hickey v. Settlemier, 141 Or.App. 103, 110, 917 P.2d 44, rev den, 323 Ore. 690, 920 P.2d 549 (1996) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). " Nevertheless, when an 'opinion' implies the existence of undisclosed defamatory facts, it is actionable." Id. Here, notwithstanding defendant's use of the phrase " in my opinion" at one point in the review, defendant's statements reasonably could be understood to state facts or imply the existence of undisclosed defamatory facts. By stating
that Neumann was rude to multiple guests, defendant, at a minimum, implied that Neumann engaged in conduct that breached the rules of decorum expected at a wedding. By stating that, in his opinion, Neumann will find a way to keep a wedding party's deposit and then charge more, defendant implied that that is, in fact, what happened at the wedding he attended. The statement that Neumann forced guests to leave earlier than agreed upon is an assertion of fact, as is the statement that Neumann is crooked, in the context of the review.
Second, relying on federal cases, defendant asserts that his statements are not defamatory because, in his view, the context of the statements demonstrates that they are figurative, rhetorical, or hyperbolic. See Obsidian Finance Group, LLC v. Cox, 812 F.Supp.2d 1220, 1222-25 (D Ore. 2011), aff'd in part, rev'd in part on other grounds, 740 F.3d 1284 (9th Cir 2014) (describing test used by the Ninth Circuit to determine whether a statement is opinion or fact for defamation purposes under its First Amendment jurisprudence, and noting several examples of nonactionable hyperbole, figurative language, and rhetoric). To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant's statements, as a whole, are hyperbolic. True, some of what defendant says in the challenged post is opinion and is hyperbolic ( e.g., " worst wedding experience [261 Or.App. 579] of my life!" ). However, the bulk of the post is nonrhetorical and factual ( e.g., " [t]he owners did not make the rules clear" ; " when they saw something they didn't like they waited until the day of the wedding to bring it up" ; " [w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately" ; " [t]he 'bridal suite' was a tool shed that was painted pretty, but a shed all the same" ). Those factual details demonstrate that defendant's statements are not mere hyperbole and, more to the point, would not be brushed off as mere hyperbole by a reasonable reader of those statements. See Wheeler v. Green, 286 Ore. 99, 104-06, 593 P.2d 777 (1979) (analyzing whether recipient of statements would have understood statements to defame the plaintiff in order to determine whether statements were defamatory).
Third, defendant claims that plaintiffs qualify as limited public figures who were required to present evidence that defendant acted with malice in order to establish a prima facie case of defamation. However, the evidence at this stage of the proceedings does not show that plaintiffs are public figures or limited public figures, as that phrase has been interpreted by Oregon courts, and defendant is not a " media defendant." See Bank of Oregon v. Independent News, 298 Ore. 434, 441, 693 P.2d 35 (1985), cert den, 474 U.S. 826, 106 S.Ct. 84, 88 L.Ed.2d 69 (1985) (" Two recent cases have held that liability applies where the plaintiff is not a 'public figure' and the defendant is not a part of the media." (Citing Wheeler, 286 Ore. 99, 593 P.2d 777; Harley-Davidson v. Markley, 279 Ore. 361, 568 P.2d 1359 (1977).)); id. at 443 (" Merely opening one's doors to the public, offering stock for public sale, advertising, etc., even if considered a thrusting of one's self into matters of public interest, is not sufficient to establish that a corporation is a public figure." ). As a result, Neumann was not required to present evidence of malice in order to establish a prima facie case of defamation under ORS 31.150.
Finally, defendant argues that, to establish a prima facie case of defamation, Neumann was required to present evidence rebutting his affirmative defense that he had a qualified privilege to make the statements that he did, or showing that he abused that qualified privilege. But a claim of privilege is an affirmative defense to a claim for [261 Or.App. 580] defamation on which a defendant bears the burden of proof. Walsh v. Consolidated Freightways, 278 Ore. 347, 355, 563 P.2d 1205 (1977). On this record, we cannot conclude as a matter of law that defendant was privileged to make the allegedly defamatory statements regarding Neumann. See Young, 259 Or.App. at 507-10 (in resolving a special motion to strike, a
court assesses a defendant's evidence only to evaluate whether the defendant's evidence defeats the plaintiff's claim as a matter of law).
Accordingly, we conclude that the trial court erred when it struck Neumann's defamation claim, and we reverse the judgment of dismissal for that reason. Because plaintiffs have not separately addressed the trial court's dismissal of the other claims in their briefing on appeal, we do not reverse the court's decision to strike those claims. We note, however, that those claims were dismissed without prejudice--as was required by ORS 31.150(1)--and that the trial court retains its authority on remand under ORCP 23 to entertain proposed amendments to the pleadings, as appropriate. ORCP 23; Allen v. Premo, 251 Or.App. 682, 685-87, 284 P.3d 1199 (2012). Finally, because we have reversed the judgment in defendant's favor, we also vacate the attorney fee award because it was predicated on the trial court's determination that the special motion to strike should be granted as to all of plaintiffs' claims. ORS 20.220(3). Thus, defendant's cross-appeal, challenging the fee award, is moot.
For the foregoing reasons, the trial court erred by granting the special motion to strike Neumann's defamation claim. We therefore reverse the trial court's decision as to [261 Or.App. 581] the defamation claim, vacate the attorney fee award, and remand for further proceedings consistent with this opinion.
On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.