Mouktabis v. Clackamas Cnty.

327 Or.App. 763

536 P.3d 1037

Nour Eddine MOUKTABIS, Plaintiff-Appellant,

v. CLACKAMAS COUNTY, a political subdivision of the State of Oregon et al., Defendants,andSandra M. Faber, an individual, and M. A., an individual, Defendants-Respondents.

A177553

Court of Appeals of Oregon.

Submitted February 3, 2023

September 7, 2023

Nour Eddine Mouktabis filed the briefs pro se.

Daniel L. Duyck and Duyck Law, LLC, filed the brief for respondent M. A.

Michael T. Stone, Brisbee & Stockton LLC, and Hood Stone Stockton filed the brief for respondent Sandra M. Faber.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

In this case, which concerns Oregon's anti-SLAPP statute, ORS 31.150, we address three main questions.¹ First, we consider whether reporting a perceived violation of a restraining order is an issue of public interest under ORS 31.150(2)(d). Second, we address whether plaintiff presented substantial evidence to support a prima facie case as required by ORS 31.150(3). Third, we determine whether the trial court correctly resolved motions for attorney fees. We conclude that, because reports to the police about whether court orders are being violated implicate public safety and effective governance, such reports are matters of public interest and plaintiff's claims arise from them. We further conclude that plaintiff failed to meet his burden of production to defeat the special motions to strike because there was probable cause to arrest plaintiff and he failed to provide admissible evidence of malice or ulterior motives. However, as explained below, we vacate and remand the supplemental money judgments awarding attorney fees, costs, and enhanced prevailing party fees.

Defendant M. A. is plaintiff's former wife, and defendant Sandra Faber was her attorney.² Faber represented M. A. in matters relating to plaintiff's and M. A.’s divorce and custody proceedings. After plaintiff was acquitted on a contempt charge stemming from M. A.’s report that he violated a restraining order, plaintiff filed claims against M. A., Faber, and others, for false arrest, false imprisonment, malicious prosecution, and abuse of process. M. A. and Faber each filed special motions to strike the claims against them. The trial court granted the motions and entered a limited judgment dismissing M. A. and Faber from the case. The trial court subsequently awarded defendants their attorney

fees and costs pursuant to ORS 31.152(3) and awarded them an enhanced prevailing party fee pursuant to ORS 20.190(3). Plaintiff appeals. For the reasons explained below, we affirm the limited judgment of dismissal, but we vacate the supplemental money judgments and remand for further proceedings on the amount of attorney fees, costs, and prevailing party fees.

To frame our discussion, we begin with some background regarding the anti-SLAPP statute. " ORS 31.150 provides a mechanism 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 P.3d 22, rev. den. , 368 Or 788 (2021). The purpose of ORS 31.150 is "to provide for the dismissal of claims against persons participating in public issues * * * before the defendant is subject to substantial expenses in defending against them." Staten v. Steel , 222 Or App 17, 29, 191 P.3d 778 (2008), rev. den. , 345 Or. 618, 201 P.3d 909 (2009).

Oregon courts analyze such motions, which are referred to as "special motion[s] to strike," using a "two-step burden-shifting process." Young v. Davis , 259 Or App 497, 501, 314 P.3d 350 (2013). 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" ORS 31.150(2). Id. (Internal quotation marks omitted.) The subsection identifies four categories of claims subject to a special motion to strike:

"A special motion to strike may be made under this section 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."

ORS 31.150(2). If the court determines that a claim falls within one of those four categories, then "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." ORS 31.150(3). "[T]he plaintiff must submit sufficient evidence from which a reasonable trier of fact could find that the plaintiff met its burden of production." Handy v. Lane County , 360 Or. 605, 622-23, 385 P.3d 1016 (2016). If the plaintiff does so, then the trial court must deny the special motion to strike. "A defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs." ORS 31.152(3).

I. FACTS

The pertinent facts are largely procedural. In April 2021, plaintiff filed a complaint against M. A., Faber, Clackamas County, the Oregon City Police Department (OCPD), and the West Linn Police Department (WLPD).³ Plaintiff alleged that M. A., acting "in concert with" Faber, "reported to OCPD that [p]laintiff violated a restraining order by sending her a text message." M. A. contacted Faber "for advice and after receiving that advice, she called to report the alleged violation." M. A. showed a police officer a message from plaintiff's telephone number, which stated, "Peace be with you." M. A. allegedly told the officer that plaintiff "sent the text as a greeting to have additional conversation in her opinion."

After confirming that "a valid restraining order was in effect which prohibited contact by phone or by text message with the exception being an emergency pertaining to the children," officers went to plaintiff's residence.⁴ Plaintiff

denied sending a text message. Nevertheless, after officers arrested plaintiff and transported him to Clackamas County Jail, he spent the night in jail, and he was released the following day.

In the criminal case that was filed against him, plaintiff argued that he never sent a text message to M. A., "and that, instead, a Whatsapp greeting intended for [p]laintiff's mother was accidentally sent to [M. A.’s] Whatsapp[.]" Plaintiff was acquitted of the charge. After his acquittal, plaintiff asserted causes of action against his former wife, Faber, OCPD, and WLPD, for false arrest, false imprisonment, malicious prosecution, and abuse of process. Plaintiff asserted a cause of action against Clackamas County, OCPD, and WLPD for negligence. Regarding the claims against M. A. and Faber, plaintiff alleged that they intentionally caused him "to be arrested based on false allegations and pretext." He alleged that they "acted with malice with the primary purpose of harassing and intimidating" him. The amended complaint also alleged other incidents in which M. A. made false reports to OCPD that plaintiff had violated the restraining order.

M. A. and Faber each filed special motions to strike under ORS 31.150. Plaintiff opposed the motions. The trial court held a hearing on the motions and granted them. First, the trial court determined that plaintiff's claims against defendants arose from protected activity under ORS 31.150(2)(d). As explained by the trial court,

"While there does not appear to be any caselaw directly on point as to whether reports of violations of protective orders are protected under ORS 31.150, as a public policy matter such reports must be considered a matter of public interest and must be protected to avoid the risk of subjecting protected parties to fear of civil liability for reporting violations of the orders.

"The Court finds that [M. A.]’s reports to police regarding perceived violations of the FAPA restraining

order by [p]laintiff are matters of public interest and are subject to ORS 31.150. In addition, the Court finds that * * * Faber's conduct in advising her client is protected attorney-client conduct and absent any evidence of malice or bad intent is not actionable by [p]laintiff."

Second, the trial court determined that plaintiff failed to present substantial evidence to support a probability of success on his claims:

"The admissible and undisputed evidence offered by [p]laintiff in support of his false arrest and false imprisonment claims shows that he was arrested by the police on May 13, 2019, and that he was acquitted after a trial on the issue, not because [M. A.] made a false report of contact, but because [p]laintiff was able to successfully argue that the contact was unintentional. Plaintiff offers absolutely no admissible evidence that [p]laintiff's arrest was unlawful, an essential element of each of those claims."

The trial court arrived at similar conclusions regarding plaintiff's claims for malicious prosecution and abuse of process, stating that plaintiff "offers absolutely no evidence other than his speculation that [defendants] * * * had malicious intent * * *, that there was a lack of probable cause for the prosecution * * *, or that [d]efendants insisted on continuation of the prosecution against [p]laintiff for the May 13, 2019 incident." There was also no evidence of an ulterior purpose...