Tort Actions

ORS 31.150
Special motion to strike

  • when available
  • burden of proof

(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. [Formerly 30.142; 2009 c.449 §1]

Notes of Decisions

Requirement that special motion to strike be treated as motion to dismiss under ORCP 21A incorporates requirement that motion be filed before responsive pleading. Horton v. Western Protector Insurance Co., 217 Or App 443, 176 P3d 419 (2008)

Appellate review of denial of special motion to strike is available only if motion is limited to purely legal issues and disputed or undisputed facts are immaterial. Staten v. Steel, 222 Or App 17, 191 P3d 778 (2008), Sup Ct review denied

Where plaintiffs requested that defendant television news broadcaster not air footage showing plaintiffs' likenesses to protect plaintiffs' safety and defendant did air footage, plaintiffs' claims arose out of defendant's conduct in exercising freedom of speech and plaintiffs' claims were subject to special motion to strike under this section because plaintiffs were unable to demonstrate that plaintiffs were likely to prevail on claims of negligence, negligent infliction of emotional distress or intentional infliction of emotional distress. Mullen v. Meredith Corporation, 271 Or App 698, 353 P3d 598 (2015)

Where plaintiff's evidence showed that commissioners of defendant county communicated via electronic mail but quorum of commissioners did not decide or deliberate towards decision, reasonable trier of fact could not find that plaintiff met burden of production under this section that requires plaintiff to establish probability of prevailing on claim for which defendant establishes prima facie case that arose from protected statements, documents or conduct. Handy v. Lane County, 360 Or 605, 385 P3d 1016 (2016)

Source

Last accessed
Jun. 26, 2021

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