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."
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
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).
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 memorandum
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:
Defendants responded that "plaintiff wants full-bore discovery; depositions, full production of documents. And then following the first round of depositions, more depositions. That's the kind of discovery that the statute is designed to prevent. It is designed to cut the costs of litigation at this stage * * *." In addition, defendants asserted that plaintiff had failed to show a probability of success:
In an order following the hearing, the court concluded that defendants "had met [their] initial burden of establishing a prima facie case showing that the claims against which the motion is made arises out of a statement, document, or conduct described in subsection 2 of ORS 31.150." In its letter opinion, the court observed that, although the statute stays discovery in order to "prevent litigation before it becomes too costly and time consuming," "further discovery may be needed in order for [p]laintiff to meet its burden[.]" Accordingly, it ordered that plaintiff "must show good cause, and request with particularity, discovery that may assist [p]laintiff in meeting its burden that it will prevail on the claims."
Thereafter, plaintiff filed a motion to allow specified discovery. He sought production of documents, depositions of defendants, and depositions of "any individuals identified upon review of the foregoing documents and depositions which are likely to have relevant testimony or documents on one or more of the elements of [p]laintiff's claims." The documents sought were set forth in a request for production attached to the motion. The request was essentially the same as that which had been discussed at the December 2007 hearing, however. The only modifications to the request were that plaintiff had lined out one section and added the following clause to several other sections: "This excludes any documents served on the Plaintiff or his land use attorney."
Defendant responded that the discovery motion should be denied because plaintiff had failed to show good cause and to request discovery with particularity, as ordered by the court. In reply, plaintiff stated that defendants had "exclusive control of essential facts for [p]laintiff to fully present a prima facie case." He set forth the elements of each of his claims and, for each element, indicated whether he had evidence or whether evidence was needed. Plaintiff indicated that he needed evidence for two of the elements of his claim for wrongful use of civil process: defendants' "absence of probable cause to prosecute the action" and "[t]he existence of malice, or as is sometimes stated, the existence of a primary purpose other than that of securing an adjudication of the claim." With respect to his claim for abuse of process, plaintiff needed evidence of both elements: an "ulterior purpose, unrelated to the process" and a "willful act in the use of the process that is not proper in the regular conduct of the proceeding." Finally, on his claim for intentional interference with prospective economic relations, plaintiff stated that he needed evidence on at least two elements: "[i]ntentional interference with [a] relationship or advantage" and that the interference was "[a]ccomplished through improper means or for an improper purpose."
At a further hearing held in March 2008, plaintiff referenced the reply, explaining that, although there were a number of elements of his claims for which he could "meet prima facie with what [he] ha[d]," there were "six essential elements" for which discovery was needed because the information to establish plaintiff's case was "totally within the control of defendants." In addition to arguing in favor of his request for discovery, plaintiff also asserted that the case was "not yet at the point where plaintiff presents their prima facie case throughout the * * * declarations and documents. Even if our motion for discovery were denied, we're not at the point where we'd put on what we have." Defendants responded that the case was, indeed, "at the point where the motion [to strike] can be decided in its entirety." According to defendants, "if plaintiff had evidence to show a probability of prevailing, and had that prima facie case, that was to be set out in the materials in response to the original motion to strike." Instead, plaintiff responded to the motion by arguing that he needed discovery. Defendants asserted that "[y]ou don't file a lawsuit and find out later or try to find out later if you have a claim. And that's what happened here." Furthermore, in defendants' view, the requested discovery was an "attempted fishing expedition to continue to try to intimidate" defendants.
After hearing both parties' arguments, the court concluded that plaintiff had "failed to state with particularity the discovery necessary" as required in the earlier order, observing that the "specified request for discovery was nothing more than a general letter that was sent out with a couple of things struck out of it" and was merely a "fishing expedition" and a "general request for discovery." Accordingly, the court granted the special motion to strike, clarifying that it would dismiss the action without prejudice and that plaintiff was free to supplement the record "all [he] want[ed]." Plaintiff protested that he had "not been allowed to put [his] prima facie case on" and that he "would like the opportunity to present" what he had. The court responded that it had already held a hearing on the motion to strike, that plaintiff had not been prepared to go forward, and that it was not going to hold another hearing. After the hearing, the court entered an order in which it held that "plaintiff has failed to show good cause, and request with particularity, specified discovery." Accordingly, the court denied the motion for specified discovery
After entry of the general judgment, defendants sought attorney fees and costs pursuant to ORS 31.152(3). Plaintiff objected, asserting that (1) reasonable attorney fees should be awarded under the statute only for work on the motion and (2) the amount of fees sought was unreasonable. At the hearing on the request for attorney fees, plaintiff contended that defendants had no right to recover attorney fees at all because they had "failed to plead and move for attorney fees as required under Rule 68." Defendants asserted that plaintiff's new argument was improper because it was not set forth in a written objection. They also pointed out that their motion to strike was filed "under ORS 31.150 et seq., and inherent in that is the right to attorney fees of the prevailing party." The court found as follows:
Accordingly, the court concluded that defendants had adequately alleged their entitlement to attorney fees, and granted fees and costs, though in a lesser amount than defendants had requested. The court later entered a supplemental judgment on the attorney fee award. Plaintiff appeals both the general and supplemental judgments, raising a number of assignments of error.
According to plaintiff, the trial court abused its discretion in denying plaintiff's motion for discovery, because necessary evidence regarding certain elements of plaintiff's claims was "solely within the control of [d]efendants" and, in his view, it is "patently unfair and prejudicial" for him to be denied discovery. "On appellate review, the `abuse of discretion standard tests only whether the trial court made a decision within the permissible range of choices[.]'" State v. G. N., 230 Or.App. 249, 254, 215 P.3d 902 (2009) (quoting State v. Hewitt, 162 Or.App. 47, 52, 985 P.2d 884 (1999), rev. dismissed, 330 Or. 567, 10 P.3d 943 (2000)) (brackets in G. N.).
Thus, although discovery is automatically stayed by the filing of a special motion to strike, the court has discretion to permit specified discovery if a showing of good cause is made. As part of their consideration of the statute, legislators explained that the reason for this procedure was to prevent expensive, protracted litigation in the types of cases covered by the statute and that, to obtain discovery, a plaintiff would have the burden to show a need for discovery and courts would have discretion to decide whether to allow it. See Staten v. Steel, 222 Or.App. 17, 29, 191 P.3d 778 (2008) (the statute's "purpose is to provide for the dismissal of claims against persons participating in public issues, when those claims would be privileged under case law, before the defendant is subject to substantial expenses in defending against them"); Tape Recording, House Committee on Judiciary, Subcommittee on Civil Law, HB 2460, Mar. 19, 2001, Tape 41, Side A (statements of Rep Kurt Schrader and Rep Lane Shetterly).
Here, as discussed above, plaintiff initially sought to obtain discovery that the court described as "everything." The trial court, at the December hearing, made clear to plaintiff that it would allow only more limited discovery, as contemplated by the statute. It clarified that it would not allow "wide-open discovery," but permitted plaintiff to file a motion showing good cause and stating with particularity the specified discovery requested. In response, however, plaintiff filed a motion in which he sought nearly the same discovery as had been earlier requested. As
Plaintiff appears to contend, nonetheless, that the court erred because it "allowed no documents to be produced which [p]laintiff sought and allowed no depositions of [d]efendants even on factual information solely within the power and control of the [d]efendants. Plaintiff was not allowed even an hour or two of depositions with either [d]efendant * * *." To the extent that plaintiff asserts that the trial court abused its discretion because it failed to itself limit the discovery request and consider the request as so limited, we are not persuaded. Plaintiff was given an opportunity to specify the discovery that he required and to explain the reasons that discovery was necessary. He chose, however, to submit another broad discovery request, even in the face of the court's statement that it would not allow "wide-open" discovery. That the court considered and decided the request as submitted was not error.
Plaintiff also contends that the trial court "erred as a matter of law in denying [p]laintiff the right to present evidence and have a hearing with oral argument on that evidence to contest the second step under ORS 31.150 on" defendant's special motion to strike. It is plaintiff's position that he requested oral argument in his opposition to the special motion to strike pursuant to UTCR 5.050 and that he was "denied the right to submit evidence and have oral argument on that evidence to defeat the second step under the statute."
UTCR 5.050(1), which plaintiff cites as the basis for his argument, provides that "[t]here must be oral argument if requested by a moving party in the caption of the motion or by a responding party in the caption of a response." Although, as plaintiff points out, UTCR 5.050 is mandatory, see Coleman and Coleman, 117 Or.App. 333, 335, 844 P.2d 234 (1992), it does not support plaintiff's contention that the trial court was necessarily required to hold multiple hearings and provide multiple opportunities for oral argument on the special motion to strike. It provides only that there must be oral argument if requested, not that the trial court must separate the oral argument on a motion into multiple hearings.
Nonetheless, in plaintiff's view, ORS 31.150(3) itself requires the process he proposes. Plaintiff points to the fact that the statute provides for a "two-part test" in the determination of a motion to strike. For that reason, it is plaintiff's position that the trial court was required to allow an additional opportunity for plaintiff to present evidence and oral argument after it decided that defendants had met their burden under the statute and denied plaintiff's request for discovery. Plaintiff's assertions are not supported by the statute's text, context, or legislative history. See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009); see also PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).
As discussed, under ORS 31.150(1),
ORS 31.150(3), in turn, provides:
Although the statute's text sets forth two steps in the resolution of a special motion to strike, it does not require that the court hold more than one hearing on the motion. Indeed, the statute's context supports a contrary view. Under ORS 31.152(1),
(Emphasis added.) That statutory context undermines plaintiff's position for two reasons. First, it demonstrates the legislature's intent that special motions to strike be filed early in a case and heard by the court in short order. That is at odds with plaintiff's contention that he was not required to present the court with his full opposition to the motion in his initial filings in response to the motion or at the initial hearing on the motion. The process that plaintiff seems to envision would be somewhat drawn out compared to the speedy procedure provided for in ORS 31.152(1). Second, ORS 31.152(1) provides that the court must hold "[a] hearing" on the motion within the time specified. That statutory reference to a single hearing undermines plaintiff's assertion that the statute required the court to allow multiple hearings before deciding the special motion to strike.
Furthermore, plaintiff's contentions are not supported by the statute's legislative history. As noted above, the statute was intended to provide an inexpensive and quick process by which claims that might infringe on the right to petition and free speech on public issues could be evaluated to determine if they were frivolous. ORS 31.150 to 31.155
Kashian v. Harriman, 98 Cal.App.4th 892, 906, 120 Cal.Rptr.2d 576 (2002) (internal quotation marks and citations omitted). It is the court that must engage in the two-step process, first deciding whether the defendant has made the threshold showing and then determining whether the plaintiff has demonstrated a probability of prevailing on the claim. See Jarrow Formulas v. LaMarche, 31 Cal.4th 728, 733, 3 Cal.Rptr.3d 636, 74 P.3d 737 (2003) (Resolution of a special motion to strike requires the court to engage in a two-step process, first determining whether the defendant has made a threshold showing that the cause of action arises from a protected activity and then determining whether the plaintiff has demonstrated a probability of prevailing.) The legislature's intent that the process pursuant to ORS 31.150 to 31.155 would save costs for litigants, be expeditious, and be informed by the California model therefore cuts against plaintiff's assertion that the statutory scheme requires a multi-step filing and hearing process.
In light of the text, context, and legislative history of ORS 31.150, we are not persuaded by plaintiff's contention that the trial court was required to provide him with an additional opportunity to present evidence and oral argument on the motion. He had an opportunity to present evidence in opposition to the motion and also to present oral argument at the two hearings held by the court. Nothing more was required under the statute.
In light of our resolution of those issues, we decline to address plaintiff's second assignment of error. In that assignment of error, plaintiff asserts that the trial court articulated an improper burden of proof that a plaintiff must meet to defeat a special motion to strike. However, plaintiff does not assert that he met the burden imposed pursuant to ORS 31.150(3). Rather, according to plaintiff, he "could have shown but was deprived of the right to present and establish a prima facie case on each claim for wrongful initial of judicial proceedings, abuse of
Finally, we turn to plaintiff's fifth assignment of error, in which he contends that the trial court erred in awarding defendants their attorney fees. According to plaintiff, defendants failed to "plead or move to assert and give notice to [p]laintiff of a claim for attorney fees" and, as a result, defendants "waived a right to seek an award of attorney fees and the court did not have authority to award fees[.]" Defendants respond that plaintiff waived that objection to the attorney fee award because he failed to raise it before the hearing. In addition, defendants contend that the trial court correctly found that defendants had adequately alleged their entitlement to attorney fees. We agree with defendants in both respects.
"We review the trial court's allowance or denial of attorney fees for legal error." Rymer v. Zwingli, 240 Or.App. 687, 691, 247 P.3d 1246, rev. den., 350 Or. 716, 260 P.3d 493 (2011). Pursuant to ORS 31.152(3), a "defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs." Thus, the statute makes an attorney fee award mandatory in a case such as this, where a defendant prevails on a special motion to strike. However, plaintiff points out that, under ORCP 68 C(2)(a),
"[T]he party seeking fees does not need to allege the statutory basis for an award when the facts alleged in the party's pleadings would provide the basis for such an award, the parties in the case have fairly been alerted that attorney fees would be sought, and no prejudice would result." Rymer, 240 Or. App. at 691, 247 P.3d 1246 (internal quotation marks omitted). Furthermore, as defendants point out, pursuant to ORCP 68 C(2)(d), "objections to the form or specificity of allegation of the facts, statute or rule that provides a basis for the award of fees shall be waived if not alleged prior to trial or hearing."
We agree with the trial court that defendants sufficiently alleged an entitlement to fees in their motion. As the trial court found, defendants filed their special motion to strike referencing ORS 31.150 and the entire related section of statutes, which includes ORS 31.152(3). Given that ORS 31.152(3) makes an attorney fee award mandatory when a defendant prevails on a special motion to strike, defendants' reference to the entire statutory section was sufficient to allege an entitlement to attorney fees.
(Underscoring and strikethrough in original.)
However, in his briefs plaintiff does not sufficiently develop any argument explaining how the denial of discovery would violate his right to jury trial. In the absence of a developed argument, we do not comprehend how the denial of discovery could have violated plaintiff's right to a jury trial under the circumstances presented in this case, and we decline to address that unsupported assertion.