Mouktabis v. M. A. ( 2021 )

22
Submitted December 4, 2020; general and supplemental judgments reversed
and remanded October 6, 2021
Nour Eddine MOUKTABIS,
Plaintiff-Appellant,
v.
M. A.,
Defendant-Respondent.
Clackamas County Circuit Court
19CV27557; A173044
500 P3d 32
Plaintiff appeals from a judgment for defendant after the trial court granted
defendant’s motion for summary judgment on plaintiff’s claims of defamation,
false light, and intentional infliction of emotional distress. The trial court con-
cluded that defendant was entitled to judgment as a matter of law, because plain-
tiff had failed to present a genuine issue of material fact to rebut defendant’s
contention that the alleged defamatory statements were privileged because they
were made in the context of a judicial proceeding. Plaintiff contends on appeal
that the summary judgment record shows that there are disputed issues of mate-
rial fact that preclude summary judgment for defendant. Held: Viewing the evi-
dence and all reasonable inferences in the light most favorable to plaintiff, the
nonmoving party, the Court of Appeals concluded that there were disputed issues
of material fact on the question whether the alleged defamatory statements were
made in the context of a judicial proceeding. Those factual issues precluded
summary judgment, and the trial court therefore erred in granting defendant’s
motion for summary judgment.
General and supplemental judgments reversed and remanded.
Janet Schroer, Judge pro tempore. (Supplemental Judgment)
Michael C. Wetzel, Judge. (General Judgment)
Nour Eddine Mouktabis filed the brief pro se.
Andrew W. Newsom waived appearance for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
General and supplemental judgments reversed and
remanded.
Cite as 315 Or App 22 (2021) 23
ARMSTRONG, P. J.
In this acrimonious litigation between former
spouses, plaintiff, appearing pro se, appeals a general judg-
ment for defendant after the trial court granted defendant’s
motion for summary judgment on plaintiff’s claims of def-
amation, false light, and intentional infliction of emotional
distress. He assigns error to the trial court’s granting of
defendant’s motion for summary judgment and to the court’s
denial of a motion to quash a subpoena of plaintiff’s per-
sonnel files from his employer. Plaintiff also appeals a sup-
plemental judgment awarding defendant attorney fees of
$37,298.50 under ORS 20.105. Viewing the evidence and all
reasonable inferences in the light most favorable to plaintiff,
the nonmoving party, we conclude that there are disputed
issues of material fact that preclude summary judgment for
defendant. ORCP 47 C; Jones v. General Motors Corp., 325
Or 404, 420, 939 P2d 608 (1997). We therefore conclude that
the trial court erred in granting defendant’s motion for sum-
mary judgment and reverse and remand the general and
supplemental judgments for defendant.
To state a claim for defamation, a plaintiff must
allege facts sufficient to establish that the defendant pub-
lished to a third person a defamatory statement about the
plaintiff. Wallulis v. Dymowski, 323 Or 337, 342-43, 918 P2d
755 (1996). Plaintiff alleged in his complaint that, pending
the parties’ dissolution proceeding, defendant published
statements to her attorney, to a social worker, and to the
executive director of a food pantry that were defamatory
and that placed plaintiff in a false light.
Statements made as part of a judicial proceeding are
absolutely privileged, Chard v. Galton, 277 Or 109, 112, 559
P2d 1980 (1977), meaning that they cannot form the basis
for a defamation claim. Moore v. West Lawn Mem’l Park, 266
Or 244, 249, 512 P2d 1344 (1973) (“When defamatory mat-
ter is absolutely privileged no cause of action exists * * *.”).
Defendant asserted in defense of plaintiff’s claims that the
alleged defamatory statements were absolutely privileged,
because they were made in open court or in connection with
a FAPA proceeding that defendant had filed after plaintiff
24 Mouktabis v. M. A.
filed a petition for dissolution of their marriage. Defendant
then sought summary judgment on that ground and on the
additional ground that the alleged defamatory statements
were true.
Defendant’s memorandum in support of summary
judgment summarized the testimony of each witness at the
FAPA hearing. Defendant also submitted the declaration of
the attorney who had represented defendant in the FAPA
proceeding, describing in general terms the testimony of
each witness.
In his written response to defendant’s summary
judgment motion, plaintiff acknowledged that testimony
given at the FAPA hearing was absolutely privileged. But
plaintiff contended that his claims were not based on that
testimony or on statements made in preparation for the
FAPA proceeding. Rather, plaintiff asserted, his claims
were based on defamatory publications made by defendant
in an unprivileged context, before she initiated the FAPA
proceeding, to her attorney and to the persons who testified
at the hearing.
At the brief hearing on defendant’s motion, the trial
court asked plaintiff to cite documents from the record—
declarations, depositions, requests for admissions—that
were evidence that defendant had made the alleged defam-
atory statements outside of a privileged setting. Plaintiff
directed the court to defendant’s counsel’s declaration
describing the testimony of witnesses at the FAPA hearing.
Plaintiff explained that the described testimony—which
was based on defendant’s disclosures to the witnesses and
not on personal observation—was evidence that defendant
had published the defamatory statements to those individu-
als outside of the context of the FAPA proceeding.1 The court
1
Plaintiff explained to the court:
“[M]y position is these witnesses testified in the court, so their testimony
is privileged. But the conversation, the statement that was given to them by
defendant took place outside of the court many months before.”
Plaintiff also wrote in his memorandum in response to defendant’s summary
judgment motion:
“In his motion for summary judgment, Defendant’s counsel seems to be
confusing Defendant’s publications of defamatory statements to third parties
Cite as 315 Or App 22 (2021) 25
disagreed with plaintiff and granted defendant’s motion.
The court based its order on plaintiff’s failure to present
any affirmative evidence that the alleged defamatory state-
ments were made outside of the FAPA proceeding. The court
did not address defendant’s assertion that she was entitled
to summary judgment because the statements had been
found to be true by the FAPA court. Plaintiff appeals, con-
tending that the record on summary judgment shows that
there are genuine issues of material fact.
We address first the issue of privilege. Because
absolute privilege is an affirmative defense, on summary
judgment, defendant, as the party who would have the
ultimate burden of persuasion at trial, bore the burden of
establishing that the undisputed facts showed that she was
entitled to judgment as a matter of law. ORCP 47 C; Clifford
v. City of Clatskanie, 204 Or App 566, 131 P3d 783, rev den,
341 Or 216 (2006). Viewing the record and all reasonable
inferences in the light most favorable to plaintiff, the non-
moving party, Eklof v. Steward, 360 Or 717, 729, 385 P3d
1074 (2016), we conclude that defendant has not met that
burden.
Although the declarations submitted by defendant
show that defendant offered the testimony of third persons
in the privileged context of the FAPA hearing, those decla-
rations are not evidence from which it could be found that
defendant’s statements were made in a privileged context.
Defendant’s declarations also allow the inference that the
third persons who testified at the FAPA hearing did so not
from personal knowledge but based on information that had
been shared with them by defendant, outside of the FAPA
including, but not limited to, Ms. Locke, Ms. Morse, Ms. Ginger Steele, and
Ms. Aicha Aamarou which were neither preliminary to a proposed judicial
proceeding nor made during the course of a judicial proceeding with those
statements which were published, many months later, by Defendant in her
FAPA petition. The fact that there might be some overlap in the statements
published in the FAPA petition or the fact that Ms. Locke and Ms. Morse
were called in later to testify to the statements that Defendant published to
them avails nothing relative to the fact that Defendant published defama-
tory material well outside judicial proceedings. Simply put, Defendant first
engaged in a malicious campaign to defame Plaintiff and put him in false
light. She then filed her FAPA petition many months later re-alleging some of
the defamatory statements she had already published to third parties some
of whom she ended up using as witnesses.”
26 Mouktabis v. M. A.
proceeding.2 Based on the record on summary judgment,
viewed in the light most favorable to plaintiff, questions of
fact remain as to whether, as defendant alleged, the alleged
defamatory statements were privileged. We therefore con-
clude that the trial court erred in granting defendant’s
motion for summary judgment.3
In discovery, defendant’s attorney subpoenaed plain-
tiff’s employer for production of plaintiff’s “complete human
resources file,” including “all records pertaining to plaintiff’s
hiring, applications, discipline, performance reviews, medi-
cal records, wages and benefits, as well as all e-mails, texts,
or other communications made by plaintiff for non-business
reasons on the employer’s computers, phones, or other
devices.” Plaintiff asserted that the subpoenaed material
had no bearing on the claims or on defendant’s defenses,
and he sought to quash the subpoena as “unreasonable and
oppressive.” See ORCP 55 A(7)(b) (“The court may quash or
modify the subpoena if the subpoena is unreasonable and
oppressive or may require that the party who served the
subpoena pay the reasonable costs of production.”). The
court denied plaintiff’s motion, explaining that the sub-
poenaed documents were potentially relevant to plaintiff’s
claim that his reputation had been damaged by defendant’s
publications and were therefore subject to discovery.4 But
2
For example, defendant’s memorandum described the testimony of Dawn
Locke, a caseworker with the Department of Human Services (DHS):
“Generally, Ms. Locke’s testimony was that she meets with [defendant] each
week for half an hour. She testified that she observed the bruise on [defen-
dant’s] leg and an earlier other bruise on her face. She testified that she was
told that the leg bruise had been caused by [plaintiff].”
(Emphasis added.)
3
As an affirmative defense, defendant contended that her utterances were
true and asserted that she was entitled to summary judgment on that ground. See
Bank of Oregon v. Independent News, 298 Or 434, 437, 693 P2d 35, cert den, 474
US 826 (1985) (noting “truth” as an affirmative defense to a defamation claim).
In light of the trial court’s conclusion that defendant was entitled to summary
judgment because the alleged defamatory utterances were made in a privileged
context, the trial court did not address defendant’s contention that the utterances
were true.
4
As a general rule, only the person subject to the subpoena can move to
quash it, see ORCP 55 A(7) (“A person who is not subpoenaed to appear, but who
is commanded to produce and permit inspection and copying of documents or
things, including records of confidential health information as defined in sub-
section D(1) of this rule, may object, or move to quash or move to modify the
subpoena[.]”). But an exception exists if a party’s rights would be jeopardized in
Cite as 315 Or App 22 (2021) 27
before plaintiff’s employer had responded to the subpoena,
the court granted defendant’s motion for summary judg-
ment and entered judgment for defendant. Because it is pos-
sible that the issue will arise on remand, we address briefly
plaintiff’s contention that the trial court erred in denying
his motion to quash the subpoena.
A subpoena may be issued for material that is sub-
ject to discovery. Vaughan v. Taylor, 79 Or App 359, 364,
718 P2d 1387, rev den, 301 Or 445 (1986) (A subpoena could
issue for material “that is relevant to the claim or defense
of the party seeking discovery or to the claim or defense of
any other party.” ORCP 36 B(1).). Subpoenaed material need
not be admissible in evidence to be subject to discovery if its
discovery appears “reasonably calculated to lead to the dis-
covery of admissible evidence.” Id. It is not evident from the
record how the expansive subpoena issued in this case was
reasonably calculated to lead to the discovery of admissible
evidence. On remand, should plaintiff again wish to chal-
lenge the ability to obtain the documents, either by way of a
motion for a protective order under ORCP 36 C5 or a motion
to quash, the trial court will have an opportunity to again
consider whether the documents are subject to discovery.
General and supplemental judgments reversed and
remanded.
the absence of a protective order. Boon and Boon, 100 Or App 354, 357, 786 P2d
215 (1986). The court did not address defendant’s contention below that plaintiff
did not have standing to challenge the subpoena.
5
ORCP 36 C provides that, “for good cause shown,” the court “may make any
order which justice requires to protect a party or person from annoyance, embar-
rassment, oppression, or undue burden or expense.”