BEVERLY K. YOUNG, Plaintiff-Appellant,
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.
Submitted on July 02, 2013.
Multnomah County Circuit Court 101115560 Edward J. Jones, Judge.
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 (2009). 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 ...