525 P.3d 470
Or. Ct. App.2023Background
- Z, born 2003, disclosed in 2011 that her paternal grandfather had sexually abused her; DHS placed Z with her father after a report and later terminated wardship in 2012.
- Z returned to her mother, Stewart, in 2012; Stewart allowed some visits by the grandfather.
- In 2013 Z disclosed ongoing abuse that included time while she was a DHS ward; the grandfather was later convicted.
- In 2018 a guardian ad litem sued DHS for negligence in failing to protect Z; DHS then sued Stewart for contribution, alleging she knew or should have known of the abuse and negligently failed to supervise or protect Z.
- Stewart filed a special motion to strike under Oregon’s anti‑SLAPP statute (ORS 31.150), arguing DHS’s contribution claim arose from her protected acts (reporting to police and facilitating Z’s suit). The trial court granted the motion and awarded fees.
- The Court of Appeals reversed, holding DHS’s claim arose from Stewart’s alleged failure to protect Z—not from protected petitioning or speech—so ORS 31.150 did not apply; the fee award was vacated and the case remanded.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Stewart) | Held |
|---|---|---|---|
| Whether DHS’s contribution claim “arises out of” conduct protected by ORS 31.150(2) | The claim arises from Stewart’s failure to protect Z, not from protected petitioning or speech, so anti‑SLAPP does not apply | The claim arises from Stewart’s reports to police and her role in facilitating Z’s suit—activities protected by the anti‑SLAPP statute | Court held the claim arises from Stewart’s alleged failure to protect Z (non‑protected conduct); anti‑SLAPP inapplicable, trial court erred in granting the strike and awarding fees |
Key Cases Cited
- Deep Photonics Corp. v. LaChapelle, 282 Or App 533 (Or. Ct. App. 2016) (the act underlying the claim must itself be in furtherance of petitioning activity; garden‑variety misconduct is not protected)
- Tokarski v. Wildfang, 313 Or App 19 (Or. Ct. App. 2021) (court must examine the specific conduct targeted by the complaint to decide what the claim "arises out of")
- Young v. Davis, 259 Or App 497 (Or. Ct. App. 2013) (explains ORS 31.150 two‑step burden‑shifting framework for special motions to strike)
- Handy v. Lane County, 274 Or App 644 (Or. Ct. App. 2015) (explains anti‑SLAPP purpose to deter suits that chill public participation)
- Kolar v. Donahue, McIntosh & Hammerton, 145 Cal App 4th 1532 (Cal. Ct. App. 2006) (a cause of action may be associated with a protected act but does not necessarily "arise out of" it)