Herrera v. C & M Victor Co.
Herrera v. C & M Victor Co.
Opinion of the Court
Plaintiff is a former public employee who sued defendant for defamation and tortious interference with an employment relationship after defendant’s agent made various accusations against plaintiff during a 9-1-1 call and in a message to plaintiffs supervisor. As clarified in litigation, the defamation claim encompassed allegations of both ordinary defamation, resulting in special damages, and defamation per se. In its answer, defendant denied certain of the allegations in plaintiffs complaint, raised affirmative defenses related to privilege, and asserted a counterclaim for attorney fees under ORS 20.105, alleging that plaintiffs claims had “no objectively reasonable basis.” On the parties’ cross-motions for summary judgment, the trial court granted summary judgment to defendant on each of plaintiffs tort claims, resulting in dismissal of plaintiffs case, and granted summary judgment to plaintiff on defendant’s counterclaim. Plaintiff appeals, arguing that the trial court erred by granting summary judgment to defendant and by denying plaintiffs motion for partial summary judgment insofar as it related to defendant’s liability on plaintiffs claim for defamation per se. We reverse the dismissal of plaintiffs claim for defamation per se and remand for further proceedings on that claim, and we otherwise affirm.
We begin by addressing plaintiffs contention that the trial court erred by granting defendant’s motion for summary judgment on plaintiffs tort claims. Accordingly, we set forth the facts in the light most favorable to plaintiff as a prelude to determining whether — viewed in that light — the evidence creates a genuine issue of material fact that should have precluded the trial court from entering judgment for defendant as a matter of law. Adair Homes, Inc. v. Dunn Carney, 262 Or App 273, 276, 325 P3d 49, rev den, 355 Or 879 (2014).
Plaintiff worked as a customer service representative for the City of Keizer Public Works Department, where he assisted with the maintenance of the city’s water system. Defendant owns Little Caesars restaurants in Salem and Keizer. In April 2011, plaintiff’s daughter went to defendant’s Keizer restaurant and attempted to use a $25 gift card that
After four days passed, plaintiff still had not received a call from anyone at Little Caesars, so he returned to the Keizer restaurant. He again arrived in a city van, wearing his work clothes and displaying a city identification badge. According to plaintiff, Arreola initially refused to provide a refund or make any other accommodation, but then she called Salmon, a regional manager who worked in defendant’s Salem restaurant. After speaking with Salmon, Arreola agreed to give plaintiff a refund, provided that he return the gift card and sign a document acknowledging receipt of the refund. Plaintiff left the restaurant to make a copy of the gift card for his records, then returned to the restaurant, signed the document, and received a refund.
Plaintiff acknowledges that he was upset during both of his interactions with Arreola, and that he raised his voice. Plaintiff also acknowledges that, while signing the document for his refund, he asked Arreola, “Where do you live? Do you live here in Keizer?” Arreola told plaintiff that she did not live in Keizer. He responded by saying, “I live and work here in the city,” and he stated that Arreola could “look [him] up.” According to plaintiff, he thought that, if Arreola lived in Keizer, she might know of him and realize that he was not attempting to defraud a community business. However, Arreola felt threatened by the question.
Meanwhile, Salmon called plaintiffs supervisor from defendant’s Salem restaurant and left a detailed voice-mail message, asserting that plaintiff had been “causing
Salmon also called 9-1-1, reporting that he had a complaint about a person who he needed to keep out of his restaurant. He explained to the 9-1-1 operator that plaintiff “had issues on Friday with a gift card. It was declined. He bought it six months ago and there’s no money left on it so he insisted that it was never used * * * so we couldn’t give the money back because * * * it was used.” Salmon further stated that “he came back today and he started threatening [Arreola]. I guess he works for the water [department] and he was trying to get where she lived and that she was going to have problems with her utilities and that’s taking it a little bit too far.”
A Keizer police officer responded to defendant’s restaurant to speak with Arreola. The officer called a phone number listed on the back of the gift card, and was informed that the full $25 purchase amount was still available on the card. Plaintiff, who had since left the restaurant, saw that the officer was there and returned to speak with him. The officer gave plaintiff a verbal trespass warning and told him not to come back to the restaurant.
Three days later, in an unrelated incident, a citizen reported to the city that plaintiff was purchasing items at a garage sale while wearing his city work clothes and driving a city van.
The city placed plaintiff on administrative leave and investigated both the restaurant incident and the report that plaintiff had been at the garage sale while on duty. After the investigation and a hearing, the city’s public-works director
“1. Whether or not [plaintiff] violated City standards by intimidating, harassing, threatening or engaging in bullying behavior directed towards the Manager of [Little Caesars] while wearing City insignia and/or identifying himself as a City employee?
“2. Whether or not [plaintiff] was operating as a City employee or ‘off the clock’ during his visits to [Little Caesars] and to the yard sale.
“3. Whether or not [plaintiff] was honest in his answers when he was questioned about his actions during the various interactions with the public.
“4. Whether or not [plaintiff] was inappropriately using a number of City resources during this time period including his City vehicle, City land line, City computer.”
The director wrote that “the evidence supports the conclusion that [plaintiff] was not truthful during the course of the investigation and due process proceeding. His misrepresentations were not the product of lack of recollection or confusion. They were intentional.” Moreover, the director made the following specific findings:
“1. [Plaintiff] intentionally misrepresented the timing and number of his visits to [Little Caesars] on May 3rd in an effort to falsely claim that those visits occurred during his lunch hour.
“2. [Plaintiff] intentionally misrepresented that he placed the call to [the Little Caesars] corporate headquarters from his home phone.
“3. [Plaintiff] falsified his time sheet on April 29th and May 3rd by failing to deduct the time he had spent purs[u]ing a personal dispute at [Little Caesars] from his hours worked [.]
*694 “4. [Plaintiff] was not truthful when he described the substance of his interactions with the Manager of [Little Caesars] [.]
“5. [Plaintiff] was not truthful when he told [the police officer] that he ‘probably’ had his ID on when he confronted [Arreola] earlier that day.
“6. [Plaintiff] was not truthful when he repeatedly insisted that he was doing locates in the Verda Lane area on May 6th and did not go to that area to shop at the garage/estate sale. [Plaintiff] was also untruthful when he repeatedly stated that he did not purchase anything from the garage/estate sale on May 6th.
“7. [Plaintiff] compounded his lack of truthfulness by influencing a witness to make a false representation on his behalf and submitting a statement containing that false misrepresentation to the City during his due process hearing.”
The director concluded that,
“while the City could justify taking a lesser form of discipline against [plaintiff] for using City time and resources to conduct personal pursuits and harassing and intimidating a citizen with threats that the pizza shop she manages would suffer a loss of business due to his importance and influence at the City (and related rude and inappropriate conduct [)], a lesser form of discipline cannot be justified given the many dishonest statements made by [plaintiff] during the course of the investigation.”
(Emphasis in original.) The city manager notified plaintiff that he agreed with the recommendation in the director’s memorandum, and he terminated plaintiff’s employment “for the reasons set forth in that memo.”
Plaintiff subsequently sued defendant, claiming that defendant, through its agent, Salmon, defamed plaintiff by making false statements to plaintiff’s supervisor and to the 9-1-1 operator. Specifically, plaintiff alleged that defendant had falsely claimed that plaintiff (1) attempted
In its answer, defendant asserted two affirmative defenses: that the statements at issue were conditionally privileged because they were made “in good faith regarding a matter in which Defendant’s representatives had an interest and was communicated to persons with a corresponding interest or duty related to the matter,” and that they were privileged because they “were in good faith and made regarding a matter of public interest.”
Plaintiff moved for partial summary judgment, asserting that the elements of defamation, defamation per se, and tortious interference were satisfied as a matter of law, leaving only the question of damages for the jury. In addition to his own declaration, plaintiff submitted as evidence defendant’s formal admissions that plaintiff had “never threatened to cut off [Arreola’s] utilities or the store’s utilities” and that plaintiff “never said he was acting on behalf of the City of Keizer in his conversations with [Arreola].” Plaintiff also submitted transcripts of Salmon’s calls to plaintiffs supervisor and to 9-1-1, and excerpts from depositions of Salmon and the police officer who responded to the restaurant.
After a combined hearing on both motions, the trial court granted summary judgment in defendant’s favor as to each of plaintiffs claims (defamation, defamation per se, and tortious interference with an employment relationship). The court ruled in defendant’s favor on all three claims for a single reason: it concluded that the summary judgment record included no evidence that Salmon’s false statements caused plaintiffs termination.
On appeal, plaintiff challenges both the trial court’s ruling granting summary judgment to defendant and the trial court’s ruling denying plaintiffs motion for partial summary judgment. See Adair Homes, 262 Or App at 276 (“In an appeal from a judgment involving cross-motions for summary judgment, both motions are subject to review if the parties have assigned error to the trial court’s rulings on them.”).
“Under Oregon law, a claim for defamation has three elements: ‘(1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.’” Neumann v. Liles, 261 Or App 567, 575, 323 P3d 521 (2014) (quoting National Union Fire Ins. Co. v. Starplex Corp., 220 Or App 560, 584, 188 P3d 332, rev den, 345 Or 317 (petitions of Scottsdale Ins. Co. and Starplex Corp.), and rev den, 345 Or 417 (petition of Nautilus Ins. Co.) (2008) (.National Union). “Special harm” is “the loss of something having an economic or pecuniary value[.)” National Union, 220 Or App at 586 (citing Restatement (Second) of Torts § 575 comment b (1977)). A claim for tortious interference with an employment relationship similarly requires, among other things, proof of “a causal effect between the interference and damage to the economic relationship” and “damages.” McGanty v. Staudenraus, 321 Or 532, 535, 901 P2d 841 (1995) (describing the elements of the tort of intentional interference with economic relations). To establish the necessary causal link between defendant’s allegedly tortious acts and the damages he allegedly suffered, plaintiff had the burden
Here, plaintiff alleged damages consisting of “lost earnings and benefits in the amount of $250,000” with respect to his claims for ordinary defamation and tortious interference with employment relationship.
We begin by emphasizing what plaintiff does not argue. The city has asserted that it terminated plaintiffs employment because of his untruthfulness during the investigation into his actions at Little Caesars and the garage sale. Plaintiff does not dispute that assertion. Rather, he contends that the record includes evidence that the city would not have investigated him in the first place if not for Salmon’s false statements. “By natural extension,” he argues, “the false claims played a substantial role in his termination.”
Plaintiff offers an additional theory about why the evidence of Salmon’s falsehoods should have precluded summary judgment in defendant’s favor on the defamation and tortious-interference claims. Noting that the city terminated plaintiff for being untruthful during the investigation, plaintiff contends that a jury could conclude that the city would not have considered his version of the Little Caesars events untruthful if Salmon had not falsely reported what had occurred. Again, we disagree. In support of its cross-motion for summary judgment, defendant submitted the letter in which the city informed plaintiff that it was terminating his employment, along with a 17-page memorandum referenced in that letter, in which the city’s public works director set out his reasons for recommending that action. That memorandum outlines the city’s investigation and provides detailed descriptions of interviews with Arreola, plaintiff, and the police officer who was dispatched to Little Caesars, as well as interviews with witnesses to the unrelated garage-sale incident. The memorandum goes on to explain the director’s conclusion that plaintiff had made "numerous misrepresentations in an effort to minimize the seriousness of his conduct and place it as occurring during
In response to the evidence that the city found him untruthful for reasons unrelated to Salmon’s false statements, plaintiff cites no contradictory evidence. Rather, he just points to the existence of those statements and the city’s later conclusion, after an extensive investigation, that plaintiff had been untruthful during that investigation. We reject plaintiffs contention that a jury could infer, simply from the evidence that Salmon made false statements, that those statements were a “substantial factor” in the city’s decision to terminate plaintiffs employment because he had been untruthful. Only speculation, not reasonable inference, could lead to such a conclusion. Consequently, the trial court did not err when it granted summary judgment to defendant on plaintiffs defamation and tortiousinterference claims on the ground that plaintiff had not submitted evidence creating a genuine dispute regarding whether defendant’s allegedly tortious acts caused him special harm, i.e., the loss of wages and benefits from his city job.
Plaintiff contends that the trial court erred in this case by granting summary judgment to defendant on the defamation per se claim on the ground that plaintiff had not proved special harm. Defendant concedes the point. The parties are correct. The trial court erred in granting summary judgment to defendant on the defamation per se claim on the same ground — absence of proof of special harm — on which it granted summary judgment to defendant on plaintiffs other tort claims. See National Union, 220 Or App at 584 (special harm is not an element of a claim for defamation per se).
Nonetheless, defendant argues that we can affirm the trial court’s judgment on the ground that Salmon’s statements were subject to a qualified privilege because they related to plaintiffs misconduct as a city employee and they were made to government authorities who may be “expected to take official action.” See Demers v. Meuret, 266 Or 252, 255-56, 512 P2d 1348 (1973) (“‘[C]ommunications made to those who may be expected to take official action of some
We decline to affirm the judgment on that “right for the wrong reason” basis. We can affirm a trial court’s ultimate ruling on a basis other than the one that the court articulated only if certain conditions are met, including that “the evidentiary record * * * be sufficient to support the proffered alternative basis for affirmance.” Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659, 20 P3d 180 (2001).
“That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance.”
Id. at 659-60 (emphasis omitted).
In moving for summary judgment, defendant did not present the trial court with the privilege argument that it makes on appeal.
Defendant also makes a second “right for the wrong reason” argument, asserting that we should affirm summary judgment in its favor to the extent that plaintiffs defamation per se claim is based on Salmon’s accusation that plaintiff was trying to use a gift card with no value. According to defendant, that accusation simply gave rise to a “consumer dispute” and not, as a matter of law, a crime involving moral turpitude. At least in the context of this case, we disagree. A jury could infer, from the nature of Salmon’s statements about plaintiffs remarks about the gift card and the context in which Salmon made those statements, that he was accusing plaintiff of a crime — theft—that involved deceit. That is enough to withstand a motion for summary judgment on the claim for defamation per se. Muresan v. Philadelphia Romanian Pentecostal Church, 154 Or App 465, 473-74, 962 P2d 711, rev den, 327 Or 621 (1998).
To recap our holdings so far: the trial court erred when it granted summary judgment in defendant’s favor on plaintiffs claim for defamation per se, but correctly granted summary judgment to defendant on plaintiffs claims for ordinary defamation and tortious interference with an employment relationship.
Again, plaintiff focuses on Salmon’s statements suggesting that plaintiff had threatened to shut off Arreola’s utilities and that he had tried to use a gift card with no value. As explained above, to prove a claim for defamation per se, plaintiff had the burden of proving that defendant made a false statement, published to a third party, that — as pertinent here — either (1) tended to injure plaintiff in his profession or business; or (2) imputed to plaintiff the commission of a crime involving moral turpitude. Marleau v. Truck Insurance Exchange, 333 Or 82, 95, 37 P3d 148 (2001). Accordingly, our task is to view the evidence in the light most favorable to defendant to determine whether a reasonable factfinder could determine that Salmon did not publish false statements that impugned plaintiff in his profession or that accused him of a crime of moral turpitude. See Affolter v. Baugh Construction Oregon, Inc., 183 Or App 198, 203 n 2, 51 P3d 642 (2002) (whether a statement “was capable of a defamatory meaning” is a question of law; whether the statement actually “was defamatory presents a factual issue to be determined by the factfinder”).
Applying that standard of review, we conclude that genuine issues of material fact exist as to whether the statements at issue were defamatory per se. The record includes plaintiffs admissions that he asked whether Arreola lived in Keizer and that he told Arreola that she could “look him up.” The record also includes evidence that plaintiff was driving a city vehicle and wearing city identification during his interactions with Arreola, that he had been at the Keizer restaurant a few days before the gift-card interaction to work on a water line, at a time when Arreola was present, that he was upset and raised his voice during his interactions with Arreola, that he repeatedly referred to his position with the city during those interactions, and that Arreola interpreted plaintiffs question about where she
Judgment on plaintiffs claim for defamation per se reversed and remanded; otherwise affirmed.
As noted above, defendant also asserted a counterclaim for attorney fees, asserting that there was no objectively reasonable basis for plaintiff’s claims. The trial court granted summary judgment in plaintiffs favor regarding that counterclaim. Defendant has not cross-appealed with respect to that ruling, and we do not address it further.
Plaintiff has not actually assigned error to the trial court’s rulings on the parties’ motions for summary judgment, as ORAP 5.45(3) requires, but has purported to assign error to the court’s reasoning underlying its rulings on those motions. “However, because it is clear from the briefs, including the described standards of review and argument, that plaintiff intends to assign error to the trial court’s rulings on summary judgment, we treat the assignments as having challenged those rulings.” Smith v. Bend Metropolitan Park and Recreation, 247 Or App 187, 192 n 2, 268 P3d 789 (2011).
The cited cases discuss the “substantial factor” test only in conjunction with defamation claims. Plaintiff does not contend that a different causal test should apply to his tortious-interference claim; to the contrary, he states that, “[g]iven the similarities in the two theories, especially as applied in this case, the substantial factor test should also apply to a tortious interference claim.” Given the parties’ agreement on that point, we assume, without deciding, that plaintiff had the burden of proving that Salmon’s allegedly defamatory statements were a substantial factor in the city’s decision to discharge him, for purposes of both his defamation claim and his claim for tortious interference with an employment relationship.
Plaintiff also alleged that he suffered $50,000 in general damages in association with his claim for defamation per se, which we discuss later in this opinion.
As we discuss in more detail below, defendant submitted uncontradicted evidence that the city terminated plaintiffs employment because he was untruthful during the investigation, and not because of the allegations that Salmon made in the challenged statements.
Indeed, it is not clear that the privilege argument that defendant makes on appeal invokes the same privilege as those that it referenced in the affirmative defenses included in its answer to plaintiff’s complaint.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.