Oregon’s Anti-SLAPP Statute: Proving Prima Facie Case (3/5)
A Plaintiff prevails if establishe a probability of prevailing at trial by presenting substantial evidence to support a prima facie case.
“The purpose of the special motion to strike procedure…is to expeditiously terminate unfounded claims that threaten constitutional free speech rights, not to deprive litigants of the benefit of a jury determination that a claim is meritorious.” Staten v. Steel, 222 Or App at 32.
ORS 31.150(3) demands only enough evidence to demonstrate a “probability” of prevailing. The “probability” does not need to be “highly probable,” “more likely than not” or “beyond a reasonable doubt” for plaintiff to prevail; “probability” in this context appears to mean something more than an improbably long shot or fluke, but no more than the “substantial evidence” standard. As long as the evidence would allow a reasonable person to find for plaintiff based solely upon plaintiff’s unrebutted evidence, a defendant’s motion to strike should be denied.
A Plaintiff’s burden to establish a probability of prevailing on its claim must also be compatible with the early stage at which the motion is brought, and the parties’ limited opportunity to conduct discovery due to the anti-SLAPP statute’s tolling of discovery upon such a motion. Consumer Justice Center v. Trimedica International, Inc., 107 Cal App 4th 595, 605 (2003). In the Consumer Justice Center case, the court explicitly disagreed with the argument that the plaintiff had to affirmatively prove its case rather than present a simple prima facie case; the court stated, “If this were the standard, only the rarest of plaintiffs would ever be able to prevail on the second prong of a special motion to strike.” Id. at 605.
One of the few Oregon cases involving ORS 31.150, Staten v. Steel, the court explained ORS 31.150(3):
When a defendant makes a prima facie showing that the plaintiff’s claim arises out of a covered action, the burden shifts to the plaintiff to show that there is a probability that it will prevail on its claim. In doing so, the plaintiff must present substantial evidence to support a prima facie case.
Staten v. Steel, 222 Or App at 29. In doing so, the court set forth a process by which the plaintiff is to follow: to establish a probability of success, he must produce substantial evidence in support of a prima facie case.
ORS 31.150 does not define “substantial evidence” but other Oregon statutes have. “Substantial evidence” means evidence sufficient to “support a finding of fact when the record, viewed as a whole would permit a reasonable person to make that finding.” ORS 183.482(8)(c); ORS 656.327(1)(b). Alternatively, under ORS 421.653(7)(b), “substantial evidence” means “evidence that, taken in isolation, a reasonable mind could accept as adequate to support a conclusion.” Under any definition, “substantial evidence” means plaintiff need present only enough evidence to allow a reasonable person to find for plaintiff on his claim, and no more.
In deciding whether a plaintiff has met his burden, the trial court may need to weigh plaintiff’s evidence to see if it is sufficient to make out a prima facie case that does not strain the court’s credulity. Staten v. Steel, 222 Or App at 30-31 (2008). The Staten case, which is one of the few Oregon appellate cases that address ORS 31.150, specifically mentions weighing evidence, but does not mention weighing the plaintiff’s evidence against the defendant’s evidence. Staten v. Steel, 222 Or App at 31 (“In deciding whether the plaintiff has met its burden, the trial court may need to weigh the evidence, something it cannot do on a motion for summary judgment.”). The California court has discussed the court’s role in weighing the evidence:
In making this judgment, the trial court’s consideration of the defendant’s opposing affidavits does not permit a weighing of them against plaintiff’s supporting evidence, but only a determination that they do not, as a matter of law, defeat that evidence.
Rowe v. Superior Court, 15 Cal App 4th 1711, 1723, 19 Cal Rptr 2d 625 (1993).
By definition, a prima facie case is one that is sufficient to prove a case if it is not contradicted or overcome by other evidence. Therefore, the court may not consider contrary evidence offered by defendant, or evidence offered in support of an affirmative defense. If contrary evidence were allowed, it would not be a “prima facie” case. ORS 31.150(3) plainly requires a “prima facie case.” ORS 31.150, as written, has no provision for a defendant to rebut plaintiff’s prima facie case, nor for the court to take the place of the fact finder by examining the weight of the evidence. Further, ORS 31.150(1) states that a special motion to strike “shall be treated as a motion to dismiss under ORCP 21.” In determining the sufficiency of a complaint under ORCP 21, the court is obligated to accept as true all well-pleaded allegations in the complaint and give the plaintiff, as the nonmoving party, the benefit of all favorable inferences that may be drawn from those allegations. Bailey v. Lewis Farm, Inc., 343 Or 276, 278, 171 P3d 336 (2007).
By definition, a prima facie case is one that is sufficient to prove a case if it is not contradicted or overcome by other evidence. In considering whether a plaintiff met her burden, the trial court should assume the truth of all the plaintiff’s allegations. A Defendant may challenge the sufficiency of plaintiff’s evidence, but may not rebut plaintiff’s case with evidence of her own. Therefore, the court may not consider contrary evidence offered by defendant, or evidence offered in support of an affirmative defense. Therefore, once plaintiff has demonstrated her evidence-based prima facie case, the “court shall deny” defendant’s special motion to strike. ORS 31.150(3). The burden of proof shifts no further. Any rebuttals or affirmative defenses that may be offered by defendant are irrelevant for purposes of ORS 31.150(3).
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