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Campos v. Jensen

Court of Appeals of Oregon

March 6, 2019

David CAMPOS, Plaintiff-Appellant,
v.
Dianna JENSEN, Defendant-Respondent.

          Argued and submitted August 28, 2018

          Clackamas County Circuit Court 17CV05259; Paul E. Winters, Judge pro tempore.

          Jeffrey S. Frasier argued the cause for appellant. Also on the briefs was Chenoweth Law Group, PC.

          Judy D. Snyder argued the cause for respondent. Also on the brief was Law Offces of Judy Snyder.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         This is a tort action for defamation and invasion of privacy. Defendant's friend accused plaintiff of sexual misconduct, resulting in criminal charges against plaintiff. Plaintiff was acquitted of those charges. Before, during, and after plaintiff's trial, defendant made online statements about the case that were sympathetic to her friend. Plaintiff alleges that those statements were defamatory and effected a tortious invasion of privacy. On defendant's special motion to strike under Oregon's anti-Strategic Lawsuits Against Public Participation statute, the trial court concluded that the statements at issue were nonactionable statements of opinion protected by the First Amendment to the United States Constitution under the framework established in Neumann v. Liles, 358 Or. 706, 369 P.3d 1117 (2016), and dismissed the case. Plaintiff appeals, assigning error to the trial court's grant of defendant's special motion to strike. Held: The trial court did not err. When each of the three challenged statements is considered as a whole, within its respective context, each gives the impression of a strongly held opinion or viewpoint and, as such, would not allow a reasonable factfinder to find that any of the statements communicated an assertion of objective fact.

         Affirmed.

         [296 Or.App. 403] LAGESEN, P. J.

         This is a tort action for defamation and invasion of privacy. Defendant's friend, Ferguson, accused plaintiff of sexual misconduct. The accusations resulted in criminal charges against plaintiff. He was acquitted of those charges. Before, during, and after plaintiff's trial, defendant made online statements about the case that were sympathetic to her friend. Plaintiff alleges that those statements were defamatory and effected a tortious invasion of privacy. On defendant's special motion to strike under Oregon's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, ORS 31.150, the trial court concluded that the statements at issue were nonactionable statements of opinion protected by the First Amendment to the United States Constitution under the framework established in Neumann v. Liles, 358 Or. 706, 369 P.3d 1117 (2016), and dismissed the case. We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The relevant facts are not disputed. As noted, defendant's friend, Ferguson, accused plaintiff of sexual misconduct. The accusations led to two criminal charges against plaintiff in Washington; a jury acquitted plaintiff of both charges. Before and shortly after plaintiffs trial, defendant posted two online statements about the charges on Ferguson's Facebook page. Additionally, during the trial, defendant posted a comment on the website for the newspaper The Columbian. Those statements form the basis of plaintiff's claims against defendant.

         Defendant made the first statement in response to a Facebook post by Ferguson. Ferguson's post stated:

"Tomorrow is a big day for me, [it's] a big day for a few folks, actually. I am eager to witness the judicial system working at full capacity! At the end of this trial, there will be 12 people that will decide the outcome of a very disturbing experience that I had almost a year and a half ago. IS he guilty or isn't he? NO matter what, he IS GUILTY. I am confident that my strength and conviction will play a big part in the outcome and I trust how that will be presented to all parties. A woman can be friendly, she can smile a lot, she can be funny, open and direct. Judge how you wish, but [296 Or.App. 404] please know that these qualities, in NO way give anyone permission to force themselves onto her!"

(Uppercase in original.) Defendant, among others, commented on that Facebook post. Defendant's comment stated:

"[W]e are 100% standing with you and by you. [W]e know who you are. [S]o we know this man is 100% guilty, and needs to pay the price for his lack of character and his criminal behavior.... [I'm] so sorry you had to experience something like this in your life, and [I] am praying for you and this case......You are one of the best people I know .... [heart emoticon you]."

         Defendant made the second statement during plaintiffs criminal trial, with a post on the website for The Columbian. The paper had published an article about the case that described Ferguson's allegations and plaintiff's position as "a case of 'he-said, she-said' and that it was a consensual encounter," and that Ferguson's version of events was not true. Defendant's comment stated:

"I know this person on a person [al] level, and she is telling the truth.....she is a fine [upstanding] person, a great mother, and a person of respectability and honesty.....she would never ever make this up....it happened, you can believe it......I hope this creep gets what he deserves..... what he did was traumatizing and just plain wrong.....He is a liar.....and a sexual predator.... BE WARE.....!!!"

(Uppercase in original.)

         Defendant made the third statement on Ferguson's Facebook page after the jury acquitted plaintiff. Responding to the acquittal, Ferguson posted "OJ got off too...but we all know he did it." Defendant commented on the post:

"Yes, and we all know this guy did it too. Justice at its worst...so sorry they couldn't get it right....[it's] a tragedy, for the community...hugs girl....we all stand with you, for you, and against him."

         Soon thereafter, plaintiff filed this action. Defendant filed a special motion to strike under ORS 31.150. Defendant asserted that her comments "are written statements made in a public forum or public place in connection with an issue [296 Or.App. 405] of public interest, ORS 31.150(2)(d)," and "[plaintiff] cannot meet his burden of establishing that there is a probability that he will prevail on the claims, ORS 31.150(3)," entitling her to dismissal of the case. In particular, defendant contended that under Neumann, 358 Or. 706, her statements qualified as opinions that were protected by the First Amendment and were, therefore, not actionable.

         Plaintiff opposed the motion. He did not dispute that defendant's statements were the type that permitted her to invoke the anti-SLAPP procedures, but, instead, contested defendant's assertion that her statements qualified as nonactionable opinions under Neumann, arguing that each statement was "presented as an ...


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