and submitted January 11, 2016
County Circuit Court 161400285 Charles D. Carlson, Judge.
Bahr argued the cause for appellant. With him on the briefs
was Bahr Law Offces, P.C.
J. Spinney argued the cause and fled the briefs for
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
a former city councilor for the city of Lowell, brought an
action against defendants for publishing seven allegedly
false statements about her in connection with a recall
election for her position. The trial court granted
defendants' special motion to strike plaintiff's
complaint under Oregon's "anti-SLAPP" statute.
On appeal, plaintiff argues that the trial court should have
denied the motion because defendants failed to confer with
plaintiff before fling and because plaintiff presented a
prima facie case that defeats an anti-SLAPP motion to strike.
uniform trial court rule that requires conferral before fling
a motion to dismiss under ORCP 21 does not apply to a special
motion to strike fled under ORS 31.150. (2) Plaintiff
presented a prima facie case with respect to four of the
seven allegedly false statements published by defendants.
judgment reversed and remanded in part; otherwise affirmed.
Supplemental judgment reversed.
Or.App. 692] ARMSTRONG, P. J.
is a former city councilor for the city of Lowell. Defendant
Recall for Lowell's Future Committee is a petition
committee that was organized to support the recall election
against plaintiff. Defendant Hern was the chief petitioner
for that effort, and defendant Garrett is the committee's
treasurer. After the election, which plaintiff lost,
plaintiff brought suit under ORS 260.532, alleging that
defendants had violated that statute by making seven
factually false statements in election materials in support
of plaintiffs recall. Defendants moved to strike the
complaint under ORS 31.150, Oregon's
"anti-SLAPP" statute. The trial court granted that
motion and dismissed the case. Plaintiff appeals. Because we
conclude that plaintiff did present a prima facie
case, as required to defeat an anti-SLAPP motion to strike,
with respect to four of the seven statements, we reverse and
remand in part and otherwise affirm. As a result, we also
reverse the supplemental judgment awarding costs and attorney
fees to defendants under ORS 31.152.
ORS 31.150, a court engages in a two-step burden-shifting
process to resolve a special motion to strike. Youns v.
Davis. 259 Or.App. 497, 501, 314 P.3d 350 (2013). First,
the court must determine whether the defendant has met the
burden to show that the claim "'arises out of one or
more protected activities described in subsection (2)."
Id. The parties agree that defendants met that
burden in this case. Thus, this case turns on the second
step, where "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." ORS
31.150(3). We review a trial court's grant of a special
motion to strike for legal error. Plotkin v. SAIF.
280 Or.App. 812, 815, 385 P.3d 1167 (2016), rev den,
360 Or. 851 (2017).
the question we must answer is whether plaintiffs evidence
was sufficient to establish a prima facie case, we
state the facts in the light most favorable to plaintiff.
Handy v. Lane County. 360 Or. 605, 608 n 1, 385 P.3d
1016 (2016). That means "we consider plaintiff's
evidence and [286 Or.App. 693] draw the reasonable inferences
from that evidence in favor of plaintiff."
Plotkin, 280 Or.App. at 815-16. Where there is a
factual conflict in the evidence, we adopt the version that
is most favorable to plaintiff, as long as it is supported by
sufficient evidence. Id. We will consider
defendants' opposing evidence "only to determine if
it defeats plaintiff's showing as a matter of law."
Id. (quotation marks and brackets omitted). We start
by describing the uncontested procedural facts of this case,
and then, in our analysis, turn to the facts as provided in
the pleadings and the supporting and opposing declarations
and exhibits submitted to the trial court, ORS 31.150(4),
viewing that evidence in the light most favorable to
was a city councilor for the city of Lowell. In December
2013, she was defeated in a recall election for her position.
Defendant Hern, as chief petitioner for plaintiff's
recall, had signed a recall petition containing
"statements of reasons for demanding [a] recall, "
and which was used to obtain voter signatures to support a
recall. Before the election, defendants also sent to voters
in Lowell a flyer entitled "Facts and Information about
Pam Bryant and Gary Reese." Defendants sent the flyer
for the purpose of persuading voters to vote in favor of
plaintiff's recall. Following the election, plaintiff
brought a complaint against defendants claiming that they had
violated ORS 260.532 because the petition [286 Or.App. 694] and
flyer contained seven false statements and defendants either
knew, or recklessly disregarded, "that their messages
presented factually false statements that were intended to
mislead voters in the recall election and cause
[plaintiff's] defeat." Those seven statements are as
1. " [Plaintiff] inferred [sic] City
Administrator Chuck Spies was involved in missing city money.
Her false inference [sic] nearly cost the city $20,
000 for an investigation and a law suite [sic]
against the City."
2. "[Plaintiff] cost the City money by calling the City
Attorney without the authorization to do so."
3. "[Plaintiff] was then fined by the State of Oregon
for not following the rules for her publication 'The
4. "[Plaintiff] has recklessly charged city staff with
unsupported allegations, and thus placed the city at risk of
ruining people's careers and reputations with no
foundation, all of which necessitated $1, 927.00 of
unbudgeted expenditures for legal fees."
5. "[Plaintiff] incorrectly asserts that she formed
'Save-Our-Schools Lowell' to raise money for our
6. "Save-Our-Schools Lowell does not exist."
7. "[Plaintiff] made a personal recording of a city
council executive session meeting in violation of state
response to the complaint, defendants filed a special motion
to strike under ORS 31.150, Oregon's anti-SLAPP statute.
With regard to plaintiff's prima facie case,
defendants admitted that they had published the statements.
They contested, however, that the statements were of fact,
false, or material, and that they knew the statements were
false or recklessly disregarded the truth or falsity of the
statements. Defendants submitted declarations and exhibits to
support their assertions. In response, plaintiff argued that
defendants' special motion to strike should be [286
Or.App. 695] dismissed because they had failed to comply with
UTCR 5.010, which requires a moving party to confer with the
other party before filing a motion under ORCP 21 and requires
the moving party to file a certificate of compliance with the
rule. Plaintiff also submitted declarations and exhibits in
support of her response, arguing that she had met her burden
to establish a. prima facie case sufficient to
defeat defendants' special motion to strike.
receiving plaintiffs response, defendants filed a late UTCR
5.010 certificate of compliance. Defendants also asked under
UTCR 1.100 that the trial court grant them relief from
application of UTCR 5.010 so that they could file the late
certificate. Alternatively, defendants argued that UTCR 5.010
does not apply to a special motion to strike filed under ORS
hearing, the trial court indicated that it did not believe
that UTCR 5.010 applied to defendants' motion, but did
not otherwise address it. Following the hearing, the trial
court issued a written order granting defendants' special
motion to strike. The court concluded that plaintiff had not
met her burden to establish a prima facie case that
the statements were false assertions of fact under the
standard for falsity applicable to an ORS 260.532 claim.
Accordingly, the trial court dismissed plaintiff's
complaint without prejudice, ORS 31.150(1). In a supplemental
judgment, the trial court awarded defendants costs and
attorney fees under ORS 31.152.
appeal, plaintiff assigns error to the trial court's
grant of defendants' special motion to strike, both on
the ground that the trial court was required to deny the
motion under UTCR 5.010 and on the ground that she had
established a prima facie case, under ORS 31.150.
Plaintiff also appeals the supplemental judgment awarding