Andrew DAVOODIAN, MD, an individual, Plaintiff-Respondent, v. Crystal Lynn RIVERA, an individual, Defendant-Appellant.
21CV12484; A176456
Washington County Circuit Court
July 26, 2023
327 Or App 197 | 535 P3d 309
Theodore E. Sims, Judge.
Argued and submitted September 15, 2022, reversed and remanded with instructions to grant defendant‘s special motion to strike as to plaintiff‘s IIED and civil extortion claims, otherwise affirmed July 26, 2023
Plaintiff, Andrew Davoodian, MD, brought this civil action against defendant, Crystal Rivera, after he received a letter from her attorney advising him that she intended to file a civil complaint alleging that he had sexually assaulted her and seeking $2 million in damages. Plaintiff asserted three claims: one for intentional infliction of emotional distress (IIED), one for civil extortion, and one for a judgment declaring that defendant‘s claims based on the alleged sexual assault are time barred. Defendant filed a special motion to strike under
Reversed and remanded with instructions to grant defendant‘s special motion to strike
Elizabeth C. Savage argued the cause and filed the briefs for appellant. Also on the opening brief was Karmel Savage, PC.
Ruth A. Casby argued the cause for respondent. Also on the brief were Janet M. Schroer and Hart Wagner LLP.
Ashley L. Vaughn and Dumas & Vaughn, LLC, and Caitlin V. Mitchell and Johnson Johnson Lucas & Middleton PC. filed the brief amicus curiae for Oregon Trial Lawyers Association.
Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.
ORTEGA, P. J.
Reversed and remanded with instructions to grant defendant‘s special motion to strike as to plaintiff‘s IIED and civil extortion claims; otherwise affirmed.
ORTEGA,
Plaintiff, Andrew Davoodian, MD, brought this civil action against defendant, Crystal Rivera, after he received a letter from her attorney advising him that she intended to file a civil complaint alleging that he had sexually assaulted her and seeking $2 million in damages. Plaintiff asserted three claims: one for intentional infliction of emotional distress (IIED), one for civil extortion, and one for a judgment declaring that defendant‘s claims based on the alleged sexual assault are time barred. Defendant filed a special motion to strike under
We conclude that defendant established that plaintiff‘s claims arose out of protected activity under
We begin with a brief overview of
for a defendant to move to strike certain nonmeritorious claims predicated on speech and petitioning activity potentially entitled to constitutional protection.” Tokarski v. Wildfang, 313 Or App 19, 21, 496 P3d 22, rev den, 368 Or 788 (2021). The purpose of
A special motion to strike may be made against any claim in a civil action that arises out of:
“(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
“(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
“(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
“(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case” on each claim. Id. The court shall grant the motion unless the plaintiff meets that burden.
We review a trial court‘s ruling on a special motion to strike for legal error. Mohabeer v. Farmers Ins. Exchange, 318 Or App 313, 316, 508 P3d 37, rev den, 370 Or 212 (2022). In conducting that review, we “consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”
In October 2018, plaintiff asked defendant on a date via an online dating app and, according to plaintiff, the parties engaged in consensual sexual contact during that date. On March 5, 2021, defendant‘s attorney, Megan Johnson, mailed plaintiff a letter on law firm letterhead with the subject line “Rivera v. Davoodian, Pre-litigation, Multnomah County Circuit Court” and attached a copy of an unfiled draft of a civil complaint. Johnson identified herself as defendant‘s attorney and stated that “[t]he attached complaint is self-explanatory,” and that she intended to file the complaint in Multnomah County Circuit Court on March 30, 2021. Johnson “urge[d]” plaintiff “to seek an attorney versed in these types of cases as soon as possible” and “have them contact” her.
The unfiled complaint attached to the letter alleged that defendant was a 33-year-old woman who met plaintiff in October 2018 on an online dating app; that plaintiff lied about his name and told defendant that he was an anesthesiologist at Oregon Health and Science University; and that plaintiff invited defendant on a date where plaintiff kissed defendant, lured her to his apartment by deception, locked her inside, sexually assaulted her, and threatened her. The unfiled complaint alleged claims for sexual battery, false imprisonment, and IIED, and it asserted that the claims were timely under
On March 30, 2021, plaintiff initiated this action in Washington County Circuit Court alleging, among other things, that the allegations in defendant‘s unfiled complaint are false, that defendant knew they were false when the letter and unfiled complaint were sent to plaintiff, and that the letter and unfiled complaint “in effect threaten [p]laintiff that unless he pays [d]efendant money for her silence, the false allegations contained in the letter and the [unfiled c]omplaint would be publicly exposed, and [d]efendant would bring a civil lawsuit against [p]laintiff.”
As to his IIED claim, plaintiff alleged that “[t]hrough the letter and the [unfiled c]omplaint, [d]efendant intended to inflict severe mental or emotional distress on [p]laintiff or knew with substantial certainty that her conduct would cause such distress” and that defendant‘s acts “constitute outrageous conduct and are an extraordinary transgression of the bounds of socially tolerable conduct.” As to his civil extortion claim, plaintiff alleged that defendant “attempted to compel or induce [p]laintiff to deliver money to [d]efendant by instilling in [p]laintiff a fear that, if the money [d]efendant demanded was not so delivered, [d]efendant would expose an alleged secret or publicize an asserted fact intending to subject [p]laintiff to hatred, contempt, or ridicule.” Finally, as to his claim for a declaratory judgment, plaintiff alleged that defendant‘s allegation in the unfiled complaint that her claims “are timely pursuant to
Defendant responded with a special motion to strike under
right to petition the government, and that “allegations of forcible and non-consensual sexual assault at the hands of a (now) licensed medical professional whose specialty is anesthesia” is both a public issue and an issue of public interest.6 Defendant also argued that plaintiff failed to present substantial evidence to support a prima facie case on each of his claims. Specifically, defendant argued that the IIED claim failed because her conduct was not outrageous, that the civil extortion claim failed because it is not a viable tort claim under Oregon law, that both the IIED and extortion claims failed because her conduct was protected by the litigation privilege, and that the declaratory judgment claim was moot.
In support of her special motion to strike, defendant submitted as exhibits copies of email correspondence between Johnson and plaintiff‘s attorney, John Kaempf. In one email dated March 25, 2021, Kaempf advised Johnson that plaintiff had retained him and that Johnson should communicate solely with Kaempf going forward. In another dated March 30, 2021, Johnson responded and asked whether Kaempf was authorized to accept service of the complaint. Defendant also submitted as an exhibit a copy of the complaint that she had filed in Multnomah County Circuit Court on April 1, 2021. The filed complaint differed from the unfiled complaint sent to plaintiff in only one respect: Defendant omitted the allegation regarding the timeliness of her claims under
Plaintiff opposed defendant‘s special motion to strike. On the first step of the analysis, plaintiff argued that defendant‘s conduct was not protected by
apply the rule adopted by the California Supreme Court in Flatley v. Mauro, 39 Cal 4th 299, 317, 139 P3d 2 (2006),7 that a special motion to strike “cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.” Plaintiff argued that defendant‘s conduct of sending the letter and unfiled complaint constituted extortion as a matter of law and therefore should not be protected under
On appeal, the parties renew and expand upon the arguments they made to the trial court. The parties also agree that, if we conclude that the trial court erred in the first step of the analysis, we may properly reach the second step. See Mullen v. Meredith Corp., 271 Or App 698, 707, 353 P3d 598 (2015) (addressing the second step of the anti-SLAPP inquiry where the trial court did not because the question was fairly presented to the trial court
and the record was sufficiently developed to enable our review).
We first turn to whether defendant met her initial prima facie burden to show that plaintiff‘s claims “arise out of” conduct protected under
The parties’ dispute turns on whether defendant‘s conduct meets the legal standard set forth in
Beginning with whether her conduct was “in furtherance of the exercise of the constitutional right of petition,” defendant points out that litigation between private parties is protected petitioning activity. See Clackamas County Oregon v. Clackamas River Water, 280 Or App 366, 370, 382 P3d 598 (2016), rev den, 360 Or 752 (2017) (explaining that “a person who petitions the government for redress, including by filing litigation, generally cannot be held liable for damages for their petitioning conduct, even if that conduct
might otherwise violate the antitrust laws or other statutes, unless the petitioning activity is a sham” and that “[t]he doctrine serves to safeguard the First Amendment right to petition the government” (citing Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56-60, 113 S Ct 1920, 123 L Ed 2d 611 (1993))). From that premise, defendant argues that “a communication made in anticipation of litigation is within th[e] category of speech that the legislature sought to protect when it enacted
Plaintiff argues that defendant‘s conduct of sending the letter and unfiled complaint was not “in furtherance of” her exercise of the right of petition within the meaning of paragraph
Although we largely agree with defendant‘s analysis, we decline to adopt a categorical rule that
We begin with the statutory text in context, which is the “best evidence” of what the legislature intended. Arrowood Indemnity Co. v. Fasching, 369 Or 214, 248, 503 P3d 1233 (2022). Because the legislature has not defined the phrase “in furtherance of,” we typically give “terms of common usage” their “plain, natural, and ordinary meaning.” State v. A. R. H., 371 Or 82, 93, 530 P3d 897 (2023). “In” is “used as a function word to indicate activity, occupation, or purpose *** <~ search of lost treasure> <~ honor of this event>.” Webster‘s Third New Int‘l Dictionary 1139 (unabridged ed 2002). And “furtherance” means “a helping forward : ADVANCEMENT, PROMOTION.” Id. at 924. Thus,
Statutory context further supports that construction.
furtherance of the exercise of the constitutional rights of petition and free speech. We thus understand
Here, we conclude that defendant has made a prima facie showing that her particular conduct was “in furtherance of” the exercise of her right of petition because the evidence supports a determination that it facilitated the initiation of the lawsuit. The letter identifies its subject as “pre-litigation” between the parties, references the attached unfiled complaint as “self-explanatory,” gives
We reject plaintiff‘s contention that we must adopt his proffered factual narrative regarding the contents of
the letter and unfiled complaint and defendant‘s purpose in sending them in determining the legal question of whether defendant‘s conduct is protected by
We also reject plaintiff‘s arguments that defendant‘s conduct is not protected petitioning activity because, in plaintiff‘s view, it is “tortious” as a matter of law and because it preceded filing of the petition with the court. In determining whether a defendant has made a prima facie showing that their conduct is protected under
313 Or App at 25. “Rather, the merits of a plaintiff‘s allegation that particular conduct is wrongful are taken into account when the court considers whether a plaintiff has made a prima facie case in support of a claim challenged by a special motion to strike” in the second step of the analysis. Id.; see also Mullen, 271 Or App at 705 (“The second part of the statutory inquiry in
value.” Handy, 360 Or at 623 n 12. Further, its holding is contrary to our prior construction of
We next turn to whether defendant‘s conduct was “in connection with a public issue or an issue of public interest.” Defendant argues that her unfiled complaint alleged that plaintiff had sexually assaulted her and that both sexual assault generally and, more particularly, “whether a licensed medical practitioner at an esteemed local hospital was preying on women he met online” are of interest to the community at large.
Plaintiff responds that the trial court correctly concluded that, while sexual assault is generally “an important issue,” it is not a public issue or an issue of public interest because “the matter at issue and not merely the generalized subject must be of public interest.” Plaintiff contends that “[t]here is no evidence in the record to support that [he] was a ‘licensed medical practitioner’ or that he ‘was preying on women,‘” and he argues that
We agree with defendant. A court examines “the content, form, and context” of statements to determine whether the statements “involve matters of public concern” such that they are protected under the First Amendment. Neumann v. Liles, 358 Or 706, 720, 369 P3d 1117 (2016) (Neumann II) (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 US 749, 761, 105 S Ct 2939, 86 L Ed 2d 593 (1985)). In Neumann II, the court held that the defendant‘s online review of a wedding venue involved “a matter of public concern” for purposes of the First Amendment because the review “was posted on a publicly accessible website, and the content of [the] review related to matters of general interest to the public, particularly those members of the public who are in the market for a wedding venue.” Id. On remand, we adopted that reasoning to conclude that the defendant‘s
review was in connection with an “issue of public interest” for purposes of
The same reasoning applies here. It is true that, unlike the online review in Neumann, the letter and unfiled complaint here were communicated privately, but the subject matter of that communication—civil claims arising from an alleged sexual assault by a person who identified himself on an online dating app as an anesthesiologist at Oregon Health and Science University (OHSU)—was similarly “related to a matter of general interest to the public,” and particularly those members of the public who are using online dating apps or need anesthesia at OHSU. See Lowell v. Wright, 369 Or 806, 852, 512 P3d 403 (2022) (Balmer, J., concurring) (explaining that Neumann II “readily conclude[d]” that the online review involved matters of public concern “due to the clarity with which the court understood that the character and reputation of a local business can be of great importance to members of the surrounding community, regardless of whether they are consumers of that business‘s products or services“). Contrary to the trial court‘s reasoning, whether plaintiff is a public figure is not determinative of whether defendant‘s conduct was in connection with an issue of public interest. See Mullen, 271 Or App at 704-06 (concluding that the trial court erred in focusing “on whether [the] plaintiff was a public figure whose identity could be a matter of public interest“); Lowell, 369 Or at 827-29 (reaffirming Neumann II‘s holding that a negative online review of a wedding venue involves a matter of public concern and observing that “[t]he touchstone principle in evaluating whether speech is on a matter of public concern is whether the speech must be protected to ensure the continuance of vigorous debate on public issues and, by extension, self-governance“). We therefore conclude that defendant has
made a prima facie showing that her conduct was “in connection with *** an issue of public interest” because the evidence supports a determination that sending a letter and draft complaint alleging civil claims arising from an alleged sexual assault by a self-identified employee of a prominent public hospital was related to a matter of general interest to the public and that that speech should be protected to ensure continued discourse on public issues.
Having concluded that defendant met her initial burden of showing that plaintiff‘s claims are subject to a special motion to strike, we next turn to whether plaintiff has established that there is a probability that he “will prevail on the claim by presenting substantial evidence to support a prima facie case” on each claim.
We first address plaintiff‘s IIED claim. To prevail on a claim for IIED, a plaintiff must show that: “(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant‘s acts were the cause of the plaintiff‘s severe emotional distress, and (3) the defendant‘s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” McGanty v. Staudenraus, 321 Or 532, 543, 901 P2d 841 (1995). “Because proof of intent is often indirect and evidence of psychic harm is usually self-serving, proof of this tort largely turns on *** whether a defendant‘s conduct is sufficiently outrageous.” House v. Hicks, 218 Or App 348, 358, 179 P3d 730, rev den, 345 Or 381 (2008). Whether conduct is “an extraordinary transgression” is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances. Id. at 358-59. And whether the offensiveness of the conduct “exceeds any reasonable limit of social toleration” is “a judgment of
social standards rather than of specific occurrences.” Id. (quoting Hall v. The May Dept. Stores, 292 Or 131, 137, 637 P2d 126 (1981), overruled in part on other grounds by McGanty, 321 Or at 548).
We again largely agree with defendant. “The relationship between the parties has particular bearing on potential characterization of the conduct as extreme or outrageous.” Delaney v. Clifton, 180 Or App 119, 130, 41 P3d 1099, rev den, 334 Or 631 (2002). A plaintiff must generally allege and prove that the defendant‘s “position or role vis-à-vis” the plaintiff was one that “imposes on the defendant a greater obligation to refrain from subjecting [the plaintiff] to abuse, fright, or shock than would be true in arm‘s-length encounters among strangers.” Id. (internal quotation marks and citations omitted). “[T]he lack of such a relationship generally defeats a conclusion that the conduct is actionable through an IIED claim.” Id. at 130-31 & n 7.
Here, the parties were strangers who met online and went on a single date. Plaintiff did not allege or submit evidence that a special relationship existed between
the parties; rather, the facts alleged establish that none existed. The lack of a special relationship between the parties distinguishes this case from the first case upon which plaintiff relies. See Hall, 292 Or at 141 (concluding that an employer‘s security personnel‘s “deliberate and systematic tactic to threaten and frighten [an] employee into a confession” for theft took the “plaintiff‘s case over the threshold into the range within which the jury could decide that defendants’ method of interrogation was an extraordinary transgression of contemporary standards of civilized conduct toward an employee“). The second case, Kraemer v. Harding, 159 Or App 90, 111, 976 P2d 1160, rev den, 329 Or 357 (1999), involved parents’ repeated public allegations to a school board that the plaintiff bus driver was a child sex abuser—allegations that persisted even though multiple investigations concluded that no inappropriate conduct had occurred. By contrast, here, although defendant threatened to publish the unfiled complaint by filing it in Multnomah County Circuit Court, and the allegations are sufficiently stigmatizing and would have particularly damaging effect on plaintiff‘s personal and professional reputation, there is no allegation or evidence that she repeated false allegations despite their being disproven in multiple investigations or in a court of law.8 Further, Kraemer involved statements that were only conditionally privileged, and that privilege was lost because the jury could have inferred that the defendants did not believe or lacked reasonable grounds to believe that the accusations were true. See id. at 107-08. Here, even assuming, as we must, that defendant‘s allegations are false and she knew they were false when she sent the letter and unfiled complaint, those statements are nonetheless absolutely privileged, as we will now explain.
Turning to the litigation privilege, plaintiff is correct that we have not yet addressed whether
issue). However,
“Oregon courts have long recognized, and enforced, an absolute privilege for statements in the course of or incident to judicial and quasi-judicial proceedings. That privilege applies equally to parties to such proceedings and to their attorneys.” Mantia v. Hanson, 190 Or App 412, 417, 79 P3d 404 (2003) (collecting cases). The privilege is
“based upon the ground that there are certain relations of life in which it is so important that the persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, and in order that their duties may be carried on freely and without fear of any action being brought against them.”
Ramstead v. Morgan, 219 Or 383, 387, 347 P2d 594 (1959) (internal quotation marks and citation omitted). The privilege applies to “statements or writings made during or as part of the litigation itself” and to “similar statements which are made by a lawyer outside of the pleadings and actual trial of the case” if the statements or writings have “some relation” thereto. Chard v. Galton, 277 Or 109, 113, 559 P2d 1280 (1977) (holding that a lawyer‘s statement in a pre-litigation letter to the plaintiff‘s insurer was absolutely privileged where it had some relation to the proposed litigation). Here, the statements in defendant‘s letter and unfiled
complaint had some relation to her proposed lawsuit against plaintiff and were therefore absolutely privileged.9
We therefore conclude, under the totality of the circumstances, that no reasonable factfinder could conclude that defendant‘s conduct exceeds “any reasonable limit of social toleration.” Accordingly, plaintiff failed to meet his burden as to his IIED claim.
We next address plaintiff‘s civil extortion claim. Plaintiff acknowledges, as he did to the trial court, that no Oregon appellate court has recognized a common-law claim of civil extortion. In plaintiff‘s view, he met his burden because he argued below that “the correct result would infer a civil cause of action from Oregon‘s criminal extortion statute,
We need not decide whether to recognize a civil cause of action for extortion because we conclude that plaintiff has failed to meet his burden even under his own proposed rule. Plaintiff has failed to explain—either below or on appeal—how defendant‘s conduct constitutes extortion under the operative version of
Jan 1, 2017). As a result, the theory of criminal extortion on which plaintiff has relied throughout this litigation to infer a civil extortion claim was not operative at the time of defendant‘s conduct. On appeal, plaintiff does not address that issue or attempt to explain how it would affect our decision to infer a civil cause of action from
Finally, although defendant‘s motion to strike challenged plaintiff‘s declaratory judgment claim, defendant failed to present an argument regarding the second step of the analysis on that claim in her opening brief on appeal and instead raised it for the first time in her reply brief. Accordingly, we decline to address it.10 State v. Thomas, 324 Or App 114, 119, 524 P3d 969 (2023) (declining to consider an argument raised for the first time in a reply brief).
Reversed and remanded with instructions to grant defendant‘s special motion to strike as to plaintiff‘s IIED and civil extortion claims; otherwise affirmed.