Young v. Davis

• Decision Date: 20 November 2013
• Docket Number: A148249.,101115560
• Citation: 259 Or.App. 497,314 P.3d 350
• Parties: Beverly K. YOUNG, Plaintiff–Appellant, v. Brenda DAVIS, personally, Defendant–Respondent, and United States of America, in place of Brenda Davis acting in course and scope of her employment; and Pamela Mindt and Hannelie Vermeulen, Defendants.
• Court: Oregon Court of Appeals

259 Or.App. 497

314 P.3d 350

Beverly K. YOUNG, Plaintiff–Appellant,

v. Brenda DAVIS, personally, Defendant–Respondent,andUnited States of America, in place of Brenda Davis acting in course and scope of her employment; and Pamela Mindt and Hannelie Vermeulen, Defendants.

101115560; A148249.

Court of Appeals of Oregon.

Submitted July 02, 2013.

Decided Nov. 20, 2013.

C. Michael Arnold, Emilia Gardner, and Arnold Law Office, LLC, filed the brief for appellant.

Christopher Lundberg, Matthew E. Malmsheimer, and Haglund Kelley Jones & Wilder, LLP, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and WOLLHEIM, Judge, and HADLOCK, Judge.

SERCOMBE, P. J.

Plaintiff appeals a judgment dismissing her claims for defamation and wrongful use of civil proceedings. As pertinent to this appeal, the judgment was entered after the trial court granted defendant's special motion to strike, which was brought pursuant to ORS 31.150, Oregon's “anti-SLAPP” (Strategic Lawsuits Against Public Participation) statute. Plaintiff argues that the trial court erred in applying ORS 31.150, specifically assigning error to (1) the trial court's determination that plaintiff's defamation claims were subject to that statute; (2) the trial court's determination that plaintiff had not met her burden of proof under the statute and its “weighing” of the evidence in concluding that plaintiff was not “likely” to succeed on the merits; and (3) the trial court's denial of plaintiff's motion for additional discovery. We reach only plaintiff's second assignment of error and conclude—assuming, without deciding, that each of plaintiff's claims was subject to ORS 31.150—that the trial court applied an incorrect legal standard with respect to plaintiff's burden of proof under that statute. Accordingly, the trial court erred in granting defendant's special motion to strike plaintiff's defamation and wrongful use of civil proceedings claims and, therefore, we reverse and remand.

To provide context, we begin by describing Oregon's anti-SLAPP statute. ORS 31.150 was enacted in 2001 to “permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage.” Staten v. Steel, 222 Or.App. 17, 27, 191 P.3d 778 (2008), rev. den.,345 Or. 618, 201 P.3d 909 (2009).¹ That statute provides, in full:

“(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The 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. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.

“(2) 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.

“(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this 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. If the plaintiff meets this burden, the court shall deny the motion.

“(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

“(5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:

“(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and

“(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding.”

Thus, the resolution of a special motion to strike under Oregon's anti-SLAPP statute requires that the court engage in a two-step burden-shifting process. 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 subsection (2). Second, if the defendant meets its 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.” If the plaintiff succeeds in meeting that burden, the special motion to strike must be denied. ORS 31.150(3).

With that background in mind, we turn to the pertinent facts of this case, which are largely procedural. The parties worked together at a Veterans Administration (VA) facility in White City, Oregon. During 2009, defendant made numerous reports to her supervisor concerning alleged sexual harassment by plaintiff—leading to two administrative workplace investigations. In October 2010, plaintiff filed the instant action against defendant in circuit court, pleading claims for, as relevant here, defamation and wrongful use of civil proceedings.² In her operative complaint, plaintiff alleged that defendant had made the following defamatory statements against her:

“u. On or about May 9, 2010, [defendant] told the Jackson County Sheriff's Office that [plaintiff] was making unwanted sexual advances to her when they had no social interactions for seven months previous. She also accused [plaintiff] of violence potential and calling her from a landline. This led to deputies arriving at her ranch with two police cars and one deputy saying, ‘Show me your gun.’

“v. On or about July 1, 2010, [defendant] told the VA Police and other unknown third parties that [plaintiff] had violated the stalking protective order that was then active when [plaintiff] walked into the VA coffee shop.”

In connection with the stalking protective order (SPO) referenced in statement (v), plaintiff additionally pleaded a claim for wrongful use of civil proceedings, alleging that, “[o]n May 3, 2010, [defendant] caused a citation to initiate [an SPO] against [plaintiff] in Jackson County Circuit Court and continued the prosecution of it thereafter. On August 12, 2010, the Court dismissed the [SPO] with prejudice, resulting in the underlying case being terminated in Plaintiff's favor.” Plaintiff further alleged that defendant “lacked probable cause as to the requisite elements of an SPO” and “filed the SPO willfully and maliciously, with the primary purposes of injuring and harassing Plaintiff.”

On December 23, 2010, defendant filed a special motion to strike plaintiff's claims under ORS 31.150. Addressing the first step of the two-step burden-shifting process described above, defendant argued that plaintiff's defamation and wrongful use of civil proceedings claims were directed at protected activities under ORS 31.150(2)(b) and (d) because those claims arose “directly out of [defendant's] statements made ‘in connection’ with” the VA administrative investigation and proceedings and defendant's “efforts to secure [an SPO] to protect herself from [plaintiff].”

Addressing the second step in the analysis mandated by ORS 31.150, both parties submitted affidavits and extensive evidence for the trial court's consideration under subsection (4) of the statute. Defendant argued that plaintiff had failed to meet her burden “to establish that there [was] a probability that [she would] prevail” on her claims, asserting that plaintiff had failed to present “substantial evidence to support a prima facie case” as to any of her claims for relief. ORS 31.150(3). Plaintiff responded that, “[e]ven if Defendant could show that Plaintiff's action [fell] under ORS 31.150 [ (2) ],” plaintiff's “evidentiary burden [was] quite low” in that her burden to establish a “probability” of success on the merits meant only “something more than an improbable long shot or fluke, but no more than the ‘substantial evidence’ standard.” Plaintiff further asserted that she had presented “substantial evidence to establish a prima facie case” for each of her claims and had therefore met her burden under ORS 31.150(3). (Boldface omitted.)

The trial court granted defendant's special motion to strike, concluding that plaintiff's defamation claim was subject to ORS 31.150(2) under paragraphs (b) and (d) and that plaintiff's claim for wrongful use of civil proceedings, “like all claims of wrongful use of civil proceedings, [was] undisputably within the protection of ORS 31.150.” The trial court then assessed “plaintiff's probability of success” on the merits, concluding:

“[A]n assessment of the probability of success requires consideration of the truth of the...