31 Trial Lawyer • Winter 2024 or an issue of public interest. Teeth in the motion What these categories come down to are statements made in the context of judicial or quasi-judicial proceedings ((a) and (b)), such as statements made in court or at an administrative hearing; statements made in a public forum on an issue of public concern (c), such as statements made at a city council meeting or town hall, or, these days, in the public square known as social media; and, finally, as relevant here, a catchall provision that protects acts “in furtherance of” the rights enumerated at (a) through (c). The moving party must make a prima facie showing that the targeted claim falls within one of those categories set forth at ORS 31.150(2). After they have done so, the burden shifts to the plaintiff to present substantial evidence in support of the targeted claims. This requires the plaintiff to put their money where their mouth is pretty early on in the litigation — a tool that can be particularly helpful when a suit is filed to silence a victim. In our example, the trial court denied Johnson’s anti-SLAPP motion, incorrectly reasoning that the letter and unfiled demand did not fall into one of those categories of speech that the statute was designed to protect. The Court of Appeals reversed, holding that the letter and unfiled demand were protected activity in furtherance of the right of petition1, because such a communication is pre-litigation activity that facilitates the progression of the suit. Davoodian v. Rivera, 327 Or App 197, 205 (2023). The Court of Appeals further determined the cover letter and unfiled demand implicated2 an issue of public interest. The court noted that civil claims arising from an alleged sexual assault by a person who identified himself on an online dating app as an anesthesiologist at OHSU were related to a matter of general interest to the public, and particularly those members of the public who are using online dating apps or need anesthesia at OHSU. Having determined that the claims targeted the defendant’s protected petitioning activity, the Court of Appeals turned to the second stage of its analysis — determining whether the plaintiff had produced substantial evidence in support of a prima facie case on each of his claims. Notably, the evidence that the plaintiff had presented consisted of his complaint, the targeted letter and unfiled complaint from Johnson, and a declaration stating only that everything in the complaint was true. The court did not address whether such a submission could ever meet the substantial evidence standard, and instead examined each element of the plaintiff’s claims to determine whether there was evidence from which a reasonable factfinder could determine that they had been met. The Court of Appeals determined the plaintiff had not made a prima facie case on his claims for IIED and civil extortion, and therefore reversed the trial court on those issues. That analysis, however, suggests that a declaration stating that “everything in the complaint is true,” without more, might in some instances be enough to carry a plaintiff’s burden of producing the “substantial evidence” required by the statute. The demand letter Davoodian means that lawyers can go on sending demand letters prior to filing complaints without unnecessarily exposing our clients to preemptive litigation. However, it is important to note that demand letters must both further the right of petition and be made in connection with a public issue in order to be protected under Oregon’s anti-SLAPP statute. The practitioner should indicate that the communication is made in anticipation of litigation and should include facts, if any exist, that indicate that the subject of the communication See Preemptive Suit p 32
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