535 P.3d 309
Or. Ct. App.2023Background
- In March 2021 defendant’s attorney mailed plaintiff a “pre‑litigation” letter attaching an unfiled draft complaint alleging plaintiff sexually assaulted defendant and seeking $2 million; the letter gave a specific filing date and urged plaintiff to retain counsel.
- Plaintiff (Davoodian) sued in Washington County, asserting intentional infliction of emotional distress (IIED), civil extortion, and a declaratory claim that defendant’s alleged claims were time‑barred.
- Defendant (Rivera) filed a special motion to strike under Oregon’s anti‑SLAPP statute, ORS 31.150, arguing the pre‑litigation letter and draft complaint were petitioning activity connected to a matter of public interest.
- The trial court denied the special motion to strike, concluding the conduct was a private dispute not protected by ORS 31.150(2).
- On appeal the Court of Appeals held the pre‑litigation letter and draft complaint were protected petitioning conduct in connection with a public issue and that plaintiff failed to present substantial evidence showing a probability of prevailing on his IIED and civil extortion claims; the court reversed as to those two claims and remanded with instructions to strike them, and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pre‑litigation letter and attached unfiled complaint are protected under ORS 31.150(2)(d) | The letter was a private, tortious extortion attempt sent to threaten and demand payment; it is not petitioning activity and lacks public interest | The letter and draft complaint advanced and facilitated initiation of litigation and implicated public‑interest topics (sexual assault allegations against a self‑identified hospital anesthesiologist) | Held protected: the communication advanced defendant’s right to petition and related to an issue of public interest, satisfying ORS 31.150(2)(d) |
| Whether plaintiff established a probability of prevailing on IIED | The letter and complaint were knowingly false, threatening, and sufficiently outrageous to support IIED | No special relationship existed; the communications were privileged litigation‑related statements and not outrageous as a matter of law | Held for defendant: plaintiff failed to present substantial evidence that conduct was an extraordinary transgression; IIED claim must be struck |
| Whether a civil extortion claim exists and was supported | Plaintiff asked the court to infer a civil extortion cause of action from Oregon’s criminal extortion statute and argued the complaint tracked the statute | Oregon appellate courts have not recognized civil extortion; the criminal statute provision relied on had been amended out before the conduct occurred | Held for defendant: plaintiff failed to show a probability of prevailing; extortion claim must be struck |
| Whether the declaratory judgment claim is subject to the anti‑SLAPP second‑step inquiry | Plaintiff asserted defendant’s claims are time‑barred under ORS 12.110(1) | Defendant raised attack on the declaratory claim at trial and on appeal (but raised some arguments first in reply) | Court declined to resolve the second‑step challenge on appeal because defendant raised part of it for the first time in the reply brief; that issue was not reached |
Key Cases Cited
- Tokarski v. Wildfang, 313 Or App 19 (discussing ORS 31.150 mechanism and prima facie burdens)
- Handy v. Lane County, 360 Or 605 (statutory construction of ORS 31.150; liberal construction in favor of expression)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (sham‑petition doctrine and First Amendment petitioning protection)
- Mullen v. Meredith Corp., 271 Or App 698 (appellate consideration of second‑step anti‑SLAPP analysis)
- Neumann v. Liles, 358 Or 706 (First Amendment/public‑interest inquiry; content/form/context test)
- Deep Photonics Corp. v. LaChapelle, 282 Or App 533 (limits on treating pre‑litigation communications as protected when lacking public‑interest connection)