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Herrera v. C & M Victor Co.

Court of Appeals of Oregon

October 1, 2014

ROLAND HERRERA, an individual, Plaintiff-Appellant,
C & M VICTOR COMPANY, an Oregon corporation, Defendant-Respondent

Argued and Submitted: March 18, 2014.

12C12976. Marion County Circuit Court. Lindsay R. Partridge, Judge.

Dennis Koho argued the cause for appellant. On the briefs were Daniel J. Rice and Heltzel, Williams, Yandell, Roth, Smith, Petersen & Lush, P.C.

Jay W. Beattie argued the cause for respondent. With him on the brief was Lindsay Hart, LLP.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.


Page 155

[265 Or.App. 690] HADLOCK, J.

Plaintiff is a former public employee who sued defendant for defamation and tortious interference with an employment relationship after defendant's agent made various accusations against plaintiff during a 9-1-1 call and in a message to plaintiff's supervisor. As clarified in litigation, the defamation claim encompassed allegations of both ordinary defamation, resulting in special damages, and defamation per se. In its answer, defendant denied certain of the allegations in plaintiff's complaint, raised affirmative defenses related to privilege, and asserted a counterclaim for attorney fees under ORS 20.105, alleging that plaintiff's claims had " no objectively reasonable basis." On the parties' cross-motions for summary judgment, the trial court granted summary judgment to defendant on each of plaintiff's tort claims, resulting in dismissal of plaintiff's

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case, and granted summary judgment to plaintiff on defendant's counterclaim. Plaintiff appeals, arguing that the trial court erred by granting summary judgment to defendant and by denying plaintiff's motion for partial summary judgment insofar as it related to defendant's liability on plaintiff's claim for defamation per se. We reverse the dismissal of plaintiff's claim for defamation per se and remand for further proceedings on that claim, and we otherwise affirm.

We begin by addressing plaintiff's contention that the trial court erred by granting defendant's motion for summary judgment on plaintiff's tort claims. Accordingly, we set forth the facts in the light most favorable to plaintiff as a prelude to determining whether--viewed in that light--the evidence creates a genuine issue of material fact that should have precluded the trial court from entering judgment for defendant as a matter of law. Adair Homes, Inc. v. Dunn Carney, 262 Or.App. 273, 276, 325 P.3d 49, rev den, 355 Or. 879, 333 P.3d 333 (2014).

Plaintiff worked as a customer service representative for the City of Keizer Public Works Department, where he assisted with the maintenance of the city's water system. Defendant owns Little Caesars restaurants in Salem and Keizer. In April 2011, plaintiff's daughter went to defendant's Keizer restaurant and attempted to use a $25 gift card that [265 Or.App. 691] plaintiff had purchased there. The card was declined, and plaintiff's daughter then called plaintiff, who went to the restaurant to try to resolve the issue. Plaintiff arrived in a city van, wearing his work clothes and displaying a city identification badge. According to plaintiff, he explained to a person that worked at the restaurant, Arreola, that he had purchased the gift card and that it had never been used. When Arreola still would not honor the gift card, plaintiff left the restaurant and returned with the receipt for the gift card. Arreola again refused to honor it. Plaintiff asked to speak with the manager, and Arreola, after telling him that the manager was not available, took plaintiff's name and phone number. Plaintiff left the restaurant.

After four days passed, plaintiff still had not received a call from anyone at Little Caesars, so he returned to the Keizer restaurant. He again arrived in a city van, wearing his work clothes and displaying a city identification badge. According to plaintiff, Arreola initially refused to provide a refund or make any other accommodation, but then she called Salmon, a regional manager who worked in defendant's Salem restaurant. After speaking with Salmon, Arreola agreed to give plaintiff a refund, provided that he return the gift card and sign a document acknowledging receipt of the refund. Plaintiff left the restaurant to make a copy of the gift card for his records, then returned to the restaurant, signed the document, and received a refund.

Plaintiff acknowledges that he was upset during both of his interactions with Arreola, and that he raised his voice. Plaintiff also acknowledges that, while signing the document for his refund, he asked Arreola, " Where do you live? Do you live here in Keizer?" Arreola told plaintiff that she did not live in Keizer. He responded by saying, " I live and work here in the city," and he stated that Arreola could " look [him] up." According to plaintiff, he thought that, if Arreola lived in Keizer, she might know of him and realize that he was not attempting to defraud a community business. However, Arreola felt threatened by the question.

Meanwhile, Salmon called plaintiff's supervisor from defendant's Salem restaurant and left a detailed voicemail message, asserting that plaintiff had been " causing [265 Or.App. 692] quite a lot of problems" over an issue with a gift card. Salmon accused plaintiff of, among other things, going " on a pretty good rant about who he was and how important he was, and how much business they lost," " going around the lobby telling people to leave and not to order anything [at the restaurant]," " threaten[ing Arreola] * * * he wanted to know where she lived and [told her] that she would have problems if she lived in Keizer with her utilities," and " threatening to cut off [Arreola's] water, or something." Salmon added that plaintiff " kept flashing his badge and talking about who he was so I'm making

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some calls and finding out who he is, I guess."

Salmon also called 9-1-1, reporting that he had a complaint about a person who he needed to keep out of his restaurant. He explained to the 9-1-1 operator that plaintiff " had issues on Friday with a gift card. It was declined. He bought it six months ago and there's no money left on it so he insisted that it was never used * * * so we couldn't give the money back because * * * it was used." Salmon further stated that " he came back today and he started threatening [Arreola]. I guess he works for the water [department] and he was trying to get where she lived and that she was going to have problems with her utilities and that's taking it a little bit too far."

A Keizer police officer responded to defendant's restaurant to speak with Arreola. The officer called a phone number listed on the back of the gift card, and was informed that the full $25 purchase amount was still available on the card. Plaintiff, who had since left the restaurant, saw that the officer was there and returned to speak with him. The officer gave plaintiff a verbal trespass warning and told him not to come back to the restaurant.

Three days later, in an unrelated incident, a citizen reported to the city that plaintiff was purchasing items at a garage sale while wearing his city work clothes and driving a city van.

The city placed plaintiff on administrative leave and investigated both the restaurant incident and the report that plaintiff had been at the garage sale while on duty. After the investigation and a hearing, the city's public-works director [265 Or.App. 693] recommended to the city manager that plaintiff's employment be terminated. In a detailed memorandum to the city manager, the director identified the issues under investigation as follows:

" 1. Whether or not [plaintiff] violated City standards by intimidating, harassing, threatening or engaging in bullying behavior directed towards the Manager of [Little Caesars] while wearing City insignia and/or identifying himself as a City employee?
" 2. Whether or not [plaintiff] was operating as a City employee or 'off the clock' during his visits to [Little ...

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