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Mullen v. Meredith Corp.

Court of Appeals of Oregon

June 17, 2015

Patrick J. MULLEN and Sarah J. Mullen, Plaintiffs-Respondents,
v.
MEREDITH CORPORATION, a foreign business corporation, dba KPTV; and Mark Hanrahan, Defendants-Appellants

Argued and Submitted January 30, 2014.

Page 599

10C19936. Marion County Circuit Court. Joseph C. Guimond, Judge.

Duane A. Bosworth argued the cause for appellants. With him on the briefs were Derek D. Green and Davis Wright Tremaine LLP.

Rick J. Glantz argued the cause for respondents. With him on the brief were M. David Daniel and Vick & Glantz, LLP.

Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge.

OPINION

Page 600

[271 Or.App. 700] ORTEGA, P. J.

This case concerns a television news story about gunshots fired in the West Salem neighborhood where Mullen (plaintiff) and his wife (together, plaintiffs) live. Plaintiffs sued defendants Meredith Corporation, doing business as KPTV, and Hanrahan, a KPTV reporter, because plaintiff was shown for 3.4 seconds in a broadcast of the story, contrary to an agreement that plaintiff, a corrections officer, allegedly had made with defendants due to safety concerns. Plaintiffs asserted claims for breach of contract, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.

Defendants responded with a special motion to strike the three tort claims under ORS 31.150, Oregon's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. The trial court denied defendants' motion and entered a limited judgment based on its determination that defendants had failed to make the necessary prima facie showing that plaintiffs' claims " arise[ ] out of a statement, document or conduct described in [ORS 31.150(2)]." ORS 31.150(3). We disagree with the trial court's reasoning and conclude that defendants established that plaintiffs' tort claims come within the reach of the statute. Accordingly, we proceed to the second inquiry, argued to but not

Page 601

reached by the trial court, and conclude that plaintiffs have failed to show a probability that they will prevail on their tort claims. We therefore reverse the trial court's limited judgment and remand with instructions that the trial court grant defendants' special motion to strike.

In order to provide context for our review, we begin by describing the anti-SLAPP statute. The purpose of ORS 31.150 is to " permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage." Staten v. Steel, 222 Or.App. 17, 27, 191 P.3d 778 (2008), rev den, 345 Or. 618, 201 P.3d 909 (2009). The statute " provide[s] for the dismissal of claims against persons participating in public issues, when those claims would be privileged under case law, before the defendant is subject to substantial expenses in defending against them." Id. at 29 (addressing legislative intent).

[271 Or.App. 701] ORS 31.150 provides, in relevant part:

" (1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.
" (2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
" * * * * *
" (d) Any 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.[1]
" (3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, 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. If the plaintiff meets this burden, the court shall deny the motion.
" (4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based."

In Young v. Davis, 259 Or.App. 497, 501, 314 P.3d 350 (2013), we explained the two-step process set out in ORS 31.150:

[271 Or.App. 702] " Thus, the resolution of a special motion to strike under Oregon's anti-SLAPP statute requires that the court engage in a two-step burden-shifting process. First, the court must 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 subsection (2). Second, if the defendant meets its burden, '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 ...

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