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Wingard v. Oregon Family Council, Inc.

Court of Appeals of Oregon

February 28, 2018

Matthew M. WINGARD, Plaintiff-Respondent,
v.
OREGON FAMILY COUNCIL, INC., an Oregon nonproft corporation, dba Oregon Family Council Issues PAC; Charles L. Starr; Jack A. Louman; Oregon Right to Life, an Oregon nonproft corporation; and Gayle Atteberry, Defendants-Appellants, and John DOE 1 and John Doe 2, Defendants.

          Argued and submitted November 3, 2017

         Multnomah County Circuit Court 16CV18238 Adrienne C. Nelson, Judge.

          James Bopp, Indiana, argued the cause for appellants. With him on the briefs were Shawn M. Lindsay, Robert D. Scholz, and Megan L. Ferris; and Corrine L. Purvis, Indiana.

          Thomas R. Rask, III, argued the cause for respondent. With him on the brief was Kell, Alterman & Runstein, L.L.P.

          Before Ortega, Presiding Judge, and Armstrong, Judge, and Garrett, Judge.

         Case Summary:

         Defendants appeal a limited judgment denying defendants' special motion to strike under ORS 31.150, the "anti-SLAPP" (Strategic Lawsuits Against Public Participation) statute, which they fled in response to plaintiff's defamation action. Defendants argue that the trial court erred in denying the [290 Or. 519] motion because plaintiff failed to carry his burden under ORS 31.150(3) of showing a probability that he would succeed on his claims.

         Held:

Under the test for review of an anti-SLAPP motion that the Oregon Supreme Court articulated in Handy v. Lane County, 360 Or. 605, 385 P.3d 1016 (2016), plaintiff did not meet his burden because he failed to present evidence that would permit a reasonable trier of fact to find either that defendants knew that their statements were materially false or that they acted with reckless disregard as to the statements' falsity. Accordingly, the trial court erred in denying defendants' motion.

         Reversed and remanded.

         [290 Or. 520] GARRETT, J.

         Plaintiff, an unsuccessful candidate in the 2016 primary election for state representative, brought this action alleging that, during that campaign, defendants published false statements about plaintiff's prior sexual relationship with a legislative aide. Plaintiff alleged claims for common-law defamation and for violation of ORS 260.532 (prohibiting certain false publications concerning a candidate). In response, defendants filed a special motion to strike under ORS 31.150, the "anti-SLAPP" statute. The trial court entered a limited judgment denying the motion, and defendants appeal.

         Defendants raise four assignments of error. The first assignment, which is dispositive, is that the trial court erred in denying the anti-SLAPP motion because plaintiff failed to carry his burden of showing a probability that he would succeed on his claims. Applying the test for review of an anti-SLAPP motion that the Supreme Court articulated in Handy v. Lane County, 360 Or. 605, 385 P.3d 1016 (2016), which was issued after the trial court's ruling in this case, we agree with defendants that plaintiff did not meet his burden, and that the trial court therefore erred in denying defendants' motion.[1] Accordingly, we reverse and remand.

         We take the following facts from the pleadings and from the supporting and opposing affidavits submitted to the trial court, ORS 31.150(4), and we state them in the light most favorable to plaintiff. Mullen ...


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