Page v. Parsons, 07C17918

• Decision Date: 25 April 2012
• Docket Number: 07C17918,A139103.
• Citation: 277 P.3d 609,249 Or.App. 445
• Parties: Gerald A. PAGE, trustee of the Lena Page Living Trust, Plaintiff–Appellant. v. Judson M. PARSONS and Diana V. Gardener, Defendants–Respondents.
• Court: Oregon Court of Appeals

249 Or.App. 445

277 P.3d 609

Gerald A. PAGE, trustee of the Lena Page Living Trust, Plaintiff–Appellant.

v.Judson M. PARSONS and Diana V. Gardener, Defendants–Respondents.

07C17918; A139103.

Court of Appeals of Oregon.

Argued and submitted Oct. 27, 2010.

Decided April 25, 2012.

Terrence Kay, Salem, argued the cause for appellant. With him on the briefs was Terrence Kay, P.C.

Jeffrey E. Kleinman, Portland, argued the cause and filed the brief for respondents.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore.

ORTEGA, P.J.

Plaintiff filed an action against defendants seeking damages for wrongful use of a civil proceeding, abuse of process, and “intentional interference with prospective economic relations.” ¹ All of plaintiff's claims against defendants were based on defendants' opposition to and appeals of state and county waivers issued to plaintiff pursuant to Ballot Measure 37 (2004). In response to plaintiff's complaint, defendants filed a special motion to strike as provided in ORS 31.150 (2007).² The trial court granted the motion and entered a general judgment dismissing plaintiff's claims without prejudice, followed by a supplemental judgment awarding defendants their attorney fees. Plaintiff appeals those judgments and, as explained below, we affirm.

For context, we begin by describing special motions to strike under ORS 31.150 to 31.155. Pursuant to ORS 31.150(2), a defendant may make a special motion to strike

“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.”

A special motion to strike must be filed “within 60 days after the service of the complaint or, in the court's discretion, at a later time,” ORS 31.152(1), and is treated “as a motion to dismiss under ORCP 21 A but will not be subject to ORCP 21 F.” ORS 31.150(1). Once the motion is filed, all discovery in the proceeding is stayed until the court has entered an order ruling on the motion. ORS 31.152(2). However, the “court, on motion and for good cause shown, may order that specified discovery be conducted notwithstanding the stay.” Id. The court must hold a hearing on the special motion to strike “not more than 30 days after the filing of the motion unless the docket conditions of the court require a later hearing.” ORS 31.152(1).

A defendant who makes a special motion to strike “has the initial burden of making a prima facie showing that the claim against which the motion is made” is of the type described above. ORS 31.150(3). If the defendant meets that burden, “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.” Id. If the plaintiff meets that burden, the court must deny the special motion to strike. Id. However, if the plaintiff does not establish a probability of prevailing on the claim as described above, “the court shall grant the motion.” ORS 31.150(1). In resolving a special motion to strike, “the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” ORS 31.150(4). Furthermore, in the event that it grants the special motion to strike, “the court shall enter a judgment of dismissal without prejudice.” ORS 31.150(1). “A defendant who prevails on a special motion to strike * * * shall be awarded reasonable attorney fees and costs.” ORS 31.152(3).

In light of that background, we now turn to the pertinent facts of this case, which are largely procedural. In August 2007, plaintiff filed this action against defendants in circuit court. In his amended complaint, plaintiff alleged that he had filed Measure 37 claims with the state and county relating to a parcel of land of approximately 50 acres. In those Measure 37 claims, plaintiff sought compensation or, in the alternative, a waiver of land use regulations that would allow the property to be divided into 1.5–acre parcels for single-family dwellings. Plaintiff obtained orders at both the state and local levels granting the waivers. Defendants filed judicial proceedings seeking review of the waivers and, based on those proceedings, plaintiff sought in his amended complaint more than $3 million for defendants' alleged wrongful use of a civil proceeding, abuse of process, and intentional interference with prospective economic relations. Plaintiff alleged that a general judgment dismissing the proceedings relating to the county waiver had been entered by the circuit court and that defendants had filed a notice of appeal with respect to that judgment. With respect to the review of the state waiver, plaintiff alleged that a general judgment of dismissal had been entered in the circuit court and that defendants had not appealed that dismissal. According to plaintiff, defendants lacked probable cause to prosecute their judicial proceedings and defendants' “ultimate motive was to prevent the subdivision * * * for the benefit of their own personal purposes regarding land conservation, constituting legal malice.” In addition, plaintiff alleged that defendants had interfered with the prospective economic advantage relating to the real property and that interference was accomplished through improper means or for an improper purpose.

In September 2007, defendants filed their special motion to strike under ORS 31.150. In that motion, they asserted that each of plaintiff's claims was directed at protected activities under ORS 31.150(2) and that the goal of plaintiff's action was “to force defendants to withdraw their pending appeal * * * in the face of a $3 million lawsuit.” In support of the special motion to strike, defendants attached copies of their petition for judicial review of the state waiver, along with their brief and excerpt of record from the pending appeal relating to the county waiver. Plaintiff filed a memorandum in opposition to the special motion to strike, along with a number of exhibits. In the memorandum, plaintiff asserted that ORS 31.150 to 31.155 did not apply to the claims in this case. Furthermore, plaintiff contended that the motion should be denied because, “following a reasonable opportunity and right of [p]laintiff to obtain discovery, [p]laintiff will establish a prima facie case on each of its claims.” (Underscoring in original.) Plaintiff asserted that he needed discovery in order to present his case under the statute. However, he set forth “ some of the facts that constitute evidence of a prima facie showing that” he would prevail on his claims. (Underscoring in original.) Plaintiff also filed a separate motion asking the court to permit discovery, asserting that “[p]laintiff must have discovery to obtain documents and depositions of [d]efendants and others to add further facts [.]” Defendants filed a reply memorandumalong with a supporting affidavit and exhibits. In the reply, in addition to emphasizing their view that the action fell within the purview of ORS 31.150(2), defendants observed that plaintiff's opposition failed to demonstrate any likelihood of success as required by the statute. SeeORS 31.150(1)(“[T]he court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim.”). Defendants also opposed plaintiff's motion for discovery, which they asserted was not well taken.

At the December 2007 hearing on the special motion to strike, after hearing some argument, the court indicated that, in its view, defendants had “at least made out that they are covered by [ORS] 31.150.” Plaintiff then focused on his request to conduct discovery:

“[W]e would ask that we be allowed discovery to then put on our prima facie case.

“THE COURT: The statute says ‘specified discovery,’ if I am going to allow that. And I guess I would not want necessarily an open book, but I would like you to kind of point to something specific that you could seek by way of discovery that would assist you in your response.

“[PLAINTIFF'S ATTORNEY]: We have, I believe, submitted a request for production already, which—

“THE COURT: Well, that's everything. You know, ‘specified’ says ‘specified’ in here. I mean, * * * what would you be able to identify, as opposed to just laying it all open?

“[PLAINTIFF'S ATTORNEY]: I might want to think about that further, Your Honor, because if we are being put to our test in showing a prima facie case that must withstand a directed verdict motion, we would want to not be unreasonably limited in the discovery we'd get. For example—

“ * * * * *

“THE COURT: Specified discovery. So I'm trying to find out specifically what it would be that you think would assist you. It may lead to something else, for which I might have to broaden it. But I would not go out with some wide-open discovery order.

“[PLAINTIFF'S ATTORNEY]: We would want the depositions of the defendants, following production of all their nonprivileged records, unless they end up using a[n] advice of counsel defense, which would open the privilege regarding all these land use matters and their communications with any third parties about it. So we...