Chinese Consolidated Benevolent Assn. v. Chin ( 2021 )

514
Argued and submitted February 4, affirmed December 22, 2021
CHINESE CONSOLIDATED BENEVOLENT
ASSOCIATION,
an Oregon nonprofit corporation,
Plaintiff-Respondent,
v.
Gene M. CHIN,
Tony Hui, Kitson Yu, and
Michael Chi-Wei Chang,
Defendants-Appellants.
Multnomah County Circuit Court
18CV58264; A172078
504 P3d 1196
Defendant appeals the trial court’s denial of attorney fees for a special motion
to strike. That motion became moot before being adjudicated on the merits due
to a voluntary dismissal of the original matter. Relying on the application of a
similar California statute, defendant argues that ORS 31.152(3) provides for an
award of attorney fees to a defendant who filed a special motion to strike, even if
the case is voluntarily dismissed for reasons unrelated to that motion and before
its adjudication on the merits. Plaintiff counters that because the motion was
moot and not relevant to the voluntary dismissal, that statute does not apply.
Held: Consistent with the plain text of ORS 31.152(3), where defendants do not
secure a ruling on a special motion to strike before a voluntary dismissal, and
the motion plays no role in the dismissal, then ORS 31.152(3) does not allow for
an award of attorney fees for prevailing on the motion.
Affirmed.
Eric J. Bloch, Judge.
Troy G. Sexton argued the cause for appellants. Also on
the briefs were Alex C. Trauman and Motschenbacher &
Blattner LLP.
Gary K. Kahn argued the cause for respondent. Also
on the brief were Tiffany A. Elkins and Reeves, Kahn,
Hennessy & Elkins.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
Cite as 316 Or App 514 (2021) 515
LAGESEN, P. J.
Affirmed.
Kamins, J., dissenting.
516 Chinese Consolidated Benevolent Assn. v. Chin
LAGESEN, P. J.
When it began, this dispute was about the fallout of
an irregular corporate election. In particular, it was about
who, in the aftermath, were the proper officers of plaintiff,
the Chinese Consolidated Benevolent Association (CCBA).
But, after the CCBA voluntarily dismissed the case under
ORCP 54, it became about something else: attorney fees.
Namely, does ORS 31.152(3), which provides for an award
of attorney fees to “[a] defendant who prevails on a special
motion to strike made under ORS 31.150,” provide for an
award of attorney fees to a defendant who filed a special
motion to strike if the case is voluntarily dismissed for rea-
sons unrelated to the motion before a merits adjudication of
the motion? We conclude, as did the trial court, that it does
not. Accordingly, we affirm.
Because this matter was voluntarily dismissed
before the CCBA’s claims were resolved on the merits, what
appear to be a number of factual disputes about the outcome
of the CCBA election have not been resolved. Acknowledging
that, for purposes of this opinion, we draw the facts from the
complaint.
The CCBA’s 2018 biennial officer-and-director elec-
tion was contentious and irregular. Due to the irregulari-
ties, it could not be certified by the accounting firm hired
to administer the election. Nonetheless, defendants Yu and
Hui claimed to have been elected as the CCBA’s president
and vice president, respectively. To celebrate, they enlisted
defendants Chin and Chang to organize a banquet.
To stop them, the CCBA sued defendants. It sought
a declaration that the 2018 election was null and void and
that the existing officers and directors would continue in
their positions until a new and valid election was held. In
addition, the CCBA sought to enjoin defendants from mak-
ing statements “purporting to be made on behalf of the
CCBA,” including representations that the election was
valid and that Yu and Hui were president and vice presi-
dent, and from conducting business on behalf of the CCBA.
The parties initially stipulated to a temporary
restraining order. Four days before the hearing on the
Cite as 316 Or App 514 (2021) 517
CCBA’s motion for a preliminary injunction, defendants filed
a special motion to strike under ORS 31.150, also known as
an “anti-SLAPP” motion. See Handy v. Lane County, 360 Or
605, 612 n 4, 385 P3d 1016 (2016) (explaining anti-SLAPP
terminology). Then, the court held a hearing on the prelim-
inary injunction. Concluding that CCBA was not likely to
prevail in the end, it denied the request for injunctive relief,
and dissolved the temporary restraining order. About two
weeks after the preliminary injunction hearing, the CCBA
voluntarily dismissed under ORCP 54 A(1). No hearing was
held on the special motion to strike, and no ruling on its
merits was made.
After the CCBA voluntarily dismissed, defendants
sought attorney fees. Although the trial court had not ruled
on the special motion to strike, they asserted that ORS
31.152(3) gave the court authority to award fees nonetheless.
The court denied the request for fees. It concluded that the
statute did not authorize an award of fees because defen-
dants had not obtained a ruling in their favor on the merits
of their motion and, further, the motion was not the cause of
plaintiff’s decision to dismiss the case:
“In conclusion, based upon a full consideration of the
undisputed record and relevant law, the court holds that
where there has not been an adjudication on the merits of
a special motion to strike brought pursuant to ORS 31.150,
and where evidence in the record supports Plaintiff’s dis-
missal of the lawsuit for reasons having no relation to the
pendency of the special motion to strike, the court cannot
find that defendant ‘prevail[ed]’ on the special motion to
strike as is contemplated in ORS 31.152(3).”
Defendants also moved for a hearing on their special motion
to strike “to determine the CCBA’s liability for attorney’s fees
under ORS 31.152,” but the trial court denied that motion
on the ground that the dismissal of the case had mooted the
merits dispute presented by the special motion to strike.
Defendants appealed. On appeal, they contend that
the trial court erred when it concluded that ORS 31.152(3)
did not authorize an award of fees to them under the cir-
cumstances present in this case. Although they recognize
that the text of the statute does not, on its face, plainly
518 Chinese Consolidated Benevolent Assn. v. Chin
authorize an award of fees under these circumstances, they
argue that the policy underlying the statutes authorizing
special motions to strike calls for an award of fees in these
circumstances because, in defendants’ view, their special
motion to strike helped them achieve their “litigation objec-
tives” by obtaining dismissal of the complaint. Alternatively,
they argue that we should adopt the approaches of either
Coltrain v. Shewalter, 66 Cal App 4th 94, 107, 77 Cal Rptr 2d
600, 608 (1998), or Tourgeman v. Nelson & Kennard, 222 Cal
App 4th 1447, 1456-58, 166 Cal Rptr 3d 729, 737-39 (2014).
Those two cases represent competing lines of California
authority addressing the availability for attorney fees on
special motions to strike in cases that are voluntarily dis-
missed before the motion is resolved on the merits. Were we
to adopt the reasoning of either case, a remand would be
required. The CCBA responds that the trial court’s analysis
was correct.
When a plaintiff voluntarily dismisses a case, ORCP
54 A(3) authorizes the court to award “any costs and dis-
bursements, including attorney fees, provided by contract,
statute, or rule.” The provision, itself, does not supply a
source of authority for a fee award. Jackson v. Mann, 207
Or App 209, 213, 140 P3d 1165 (2006). Rather, a defendant
must identify some other source of law—“contract, statute,
or rule”—authorizing a fee award.
Defendants point to ORS 31.152(3) as the source
of authority for fees. Whether that provision authorizes
fees in these circumstances—where a plaintiff voluntarily
dismisses a complaint for reasons unrelated to a pending
special motion to strike—presents a question of statutory
construction, making our review “for legal error, employing
the methodology described in PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and
State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009).”
Central Oregon LandWatch v. Deschutes County, 285 Or App
267, 276-77, 396 P3d 968 (2017). Our role is to determine
the meaning of the provision at issue that the enacting leg-
islature most likely intended. State v. Robinson, 288 Or App
194, 198-99, 406 P3d 200 (2017). We do so by examining the
statutory “text, in context, and, where appropriate, legisla-
tive history and relevant canons of construction.” Chase and
Cite as 316 Or App 514 (2021) 519
Chase, 354 Or 776, 780, 323 P3d 266 (2014). In conducting
that examination, we mind the legislature’s instruction on
how we should read its work: “In the construction of a stat-
ute, the office of the judge is simply to ascertain and declare
what is, in terms or in substance, contained therein, not
to insert what has been omitted, or to omit what has been
inserted[.]” ORS 174.010.
As noted, the precise question before us is whether
ORS 31.152(3) authorizes an award of attorney fees in con-
nection with a special motion to strike that was neither
adjudicated on the merits before the voluntary dismissal of
a case, nor played a role in the dismissal. In this instance,
the text of the statute is dispositive. ORS 31.152(3) states
that “a defendant who prevails on a special motion to strike
made under ORS 31.150 shall be awarded reasonable attor-
ney fees and costs.” The statute requires two things: (1) that
a defendant “prevail” and (2) that the thing the defendant
prevailed on was a “special motion to strike.” That is, it does
not provide for fees for prevailing in general or for prevailing
on requests for relief that are not special motions to strike.
Thus, although defendants qualify as the prevailing parties
on plaintiff’s claims as a result of the voluntary dismissal,
see ORCP 54 A(3),1 the issue for purposes of ORS 31.152(3)
is whether defendants can be said to have prevailed on their
special motion where, as here, they did not secure a ruling
on it before the case was dismissed.
The ordinary meaning of the word “prevail” is “to
gain victory by virtue of strength or superiority : win mas-
tery : triumph.” Webster’s Third New Int’l Dictionary 1797
(unabridged ed 2002). In no sense here have defendants “tri-
umphed” on their motion to strike. To triumph on a motion,
a party ordinarily would need to secure a favorable ruling
on the motion. Here, the trial court never ruled on the mer-
its of the motion.
We acknowledge that it would not be implausible to
read ORS 31.152(3) to embrace a broader conception of what
it means to prevail, and do not rule that out. As the debate
1
Accordingly, if defendants had identified a source of authority entitling
them to fees for prevailing on plaintiff’s claims, they would be entitled to fees.
But defendants have not identified any such authority in this case.
520 Chinese Consolidated Benevolent Assn. v. Chin
among the members of the Supreme Court in Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health
and Human Resources illustrates, it would perhaps be
unusual, but not unreasonable, to view a defendant whose
motion was the cause for a voluntary dismissal of a com-
plaint to have “triumphed” on the motion even without a
court ruling on the merits. 532 US 598, 603, 121 S Ct 1835,
149 L Ed 2d 855 (2001) (statute authorizing fees to “prevail-
ing party” required that party have prevailed by obtaining
favorable court ruling); id. at 622 (Ginsburg, J., dissenting)
(party that obtains “the precise relief she seeks” is a pre-
vailing party, even without “court entry memorializing her
victory”).
We need not decide the question here. That is
because the trial court found that plaintiff’s dismissal
was “for reasons having no relation to the pendency of the
special motion to strike.” Defendants have not challenged
that determination and the record supports it. Because the
motion was not the cause of the dismissal, it would be a
stretch to conclude that a motion that (1) was not resolved on
its merits, and (2) did not play a causal role in the outcome of
the case, is a motion on which the proponent prevailed.
The California cases on which defendants rely do not
convince us that the Oregon legislature intended otherwise.
We first note that ORS 31.152(3) was modeled on
a similarly worded provision of California’s anti-SLAPP
statute. Compare ORS 31.152(3) with Cal Code Civ Proc
§ 425.16(c)(1) (2001). Consequently, had the California
Supreme Court construed the statute before the date of
Oregon’s enactment, we would presume that the legisla-
ture intended to adopt that construction. Handy, 360 Or at
618-19. Here, though, the decisions that defendants point to
are decisions of the California Courts of Appeals—some of
which post-date Oregon’s enactment—so no such presump-
tion applies.
As for persuasive value, the approach taken in
Tourgeman is fundamentally inconsistent with Oregon law.
In Tourgeman, the court held that (1) a determination of the
merits of a special motion to strike is a prerequisite to an
award of attorney fees under the California analog to ORS
Cite as 316 Or App 514 (2021) 521
31.152(3); and (2) a court has jurisdiction, following the vol-
untary dismissal of a complaint, to determine the merits of
an unresolved special motion to strike solely for the purpose
of determining entitlement to attorney fees. 222 Cal App 4th
at 1456-58, 166 Cal Rptr 3d at 737-39.
As a matter of Oregon law, that approach is problem-
atic because the voluntary dismissal of a complaint renders
the underlying merits of the plaintiff’s claims—as well as
the underlying merits of a motion attacking those claims—
moot. Dismissal means that there are no longer any merits
claims or defenses for the court to resolve; doing so would
be advisory. And, once an underlying claim becomes moot,
a court lacks jurisdiction to resolve its merits solely for the
purpose of determining attorney fee entitlement. See, e.g.,
Nordbye v. BRCP/GM Ellington, 271 Or App 168, 181-84,
349 P3d 639 (2015) (holding that potential entitlement to
attorney fees does not permit a court to resolve the mer-
its of an otherwise moot claim); see also Birchall v. Miller,
314 Or App 521, 523, 497 P3d 1268 (2021) (“[O]ur decision
in Nordbye disposes of plaintiffs’ contention that a trial
court has jurisdiction to resolve an otherwise moot merits
claim simply for the purpose of awarding prevailing-party
attorney fees in connection with that claim.”). Although
the legislature could, in theory, displace this rule, we see
no indication of that intention in ORS 31.152 or the other
provisions of Oregon’s anti-SLAPP law. In other words, we
see no indication that the legislature intended to require
courts to expend already limited judicial resources on the
merits adjudication of a special motion to strike targeting
a claim that has been dismissed voluntarily simply to get
to the issue of attorney fees. Certainly, nothing in the text
of ORCP 54 A suggests that the legislature contemplated
courts ruling on the merits of motions to dismiss certain
claims that have already been dismissed simply for the pur-
pose of determining whether the motion would have led to
dismissal had it been adjudicated.
The other case on which defendants rely is Coltrain.
Coltrain holds that where a plaintiff voluntarily dismisses
after the filing of a special motion to strike, whether a
defendant is entitled to attorney fees on account of having
“prevailed” on the motion turns on “which party realized
522 Chinese Consolidated Benevolent Assn. v. Chin
its objectives in the litigation.” 66 Cal App 4th at 107, 77
Cal Rptr 2d at 608. The defendant in such circumstances is
presumed to have prevailed on the motion but the plaintiff
can prove that “it actually dismissed because it had sub-
stantially achieved its goals through a settlement or other
means, because the defendant was insolvent, or for other
reasons unrelated to probability of success on the merits.”
Id.That standard—and the creation of presumptions—
is too far removed from the words of ORS 31.152(3) for us to
conclude that it was what the Oregon legislature intended.
It, in effect, risks rewriting ORS 31.152(3) to provide for
attorney fees in any matter in which a special motion to
strike is filed and the defendant ultimately achieves its lit-
igation objectives, even though the success might be unre-
lated to the likelihood of the defendant actually prevailing
on the motion to strike. We reject it for that reason.
As we have said, we have not ruled out a reading
of ORS 31.152(3) that would allow for an award of fees to
a defendant in a matter voluntarily dismissed in response
to a special motion to strike, before the motion is resolved
on its merits, in those circumstances where it is inferable
that the motion played a role in the dismissal. But we need
not finally resolve the extent to which ORS 31.152(3) might
authorize fees in that situation because that is not the situ-
ation here, given the trial court’s supported factual finding
that the CCBA dismissed for reasons unrelated to the spe-
cial motion to strike.
The dissenting opinion would reach a different
conclusion, relying primarily on one or the other of the
California approaches and the policy underlying Oregon’s
anti-SLAPP provisions. That approach, in our view, falters
for three primary reasons.
First, to the extent the dissenting opinion proposes
that a trial court has the jurisdiction to resolve the merits
of a special motion to strike a claim that was dismissed—
and thus does not present a justiciable controversy between
the parties—simply for the purpose of awarding attorney
fees in connection with the motion, the dissenting opinion
identifies no statute or other source of law granting that
Cite as 316 Or App 514 (2021) 523
authority. On the contrary, our cases have rejected the
notion that a court retains jurisdiction to resolve moot mer-
its issues simply for the purpose of determining attorney-fee
entitlement.
Second, as noted, the California cases on which the
dissenting opinion relies are not ones that are presumed to
have been embraced by the Oregon legislature in adopting
the anti-SLAPP provisions because they are products of
California’s intermediate appellate courts, not its Supreme
Court. Handy, 360 Or at 618-19. In addition, as discussed
above, the California Courts of Appeal have taken diver-
gent approaches to the availability of attorney fees on a spe-
cial motion to strike under these circumstances. See, e.g.,
Tourgeman, 222 Cal App 4th at 1456-58, 166 Cal Rptr 3d
at 737-39. That means that the cases inform our analysis
only to the extent that they are persuasive of their own force.
Here, the text of the statute does not strongly support either
California approach, making it unpersuasive. Likewise, the
legislative history of Oregon’s statutes does not indicate that
the legislature intended to adopt one or the other of those
approaches, something we would expect to see signaled in
the text of the statute, had the legislature been aware of
those competing lines of authority and intended to adopt one
or the other.
Third, we disagree that failing to adopt either of the
two California approaches undercuts the policy underlying
Oregon’s statutes governing special motions to strike. In that
regard, it is important to keep in mind that not all claims
that arise out of the types of speech identified under ORS
31.150 are subject to dismissal under that statute’s provi-
sions or are otherwise improper attempts to squelch speech.
See Tokarski v. Wildfang, 313 Or App 19, 24-25, 496 P3d
22 (2021) (explaining how a potentially meritorious claim
challenging a defendant’s unlawful conduct can be subject
to a special motion to strike under ORS 31.150). A claim
may arise out of the types of speech or conduct identified in
ORS 31.150, but nonetheless have merit so as to withstand
a special motion to strike. See id. (concluding that although
the claim at issue arose out of protected petitioning activity
for purposes of ORS 31.150, it was not subject to dismissal
under ORS 31.150 because the plaintiff made a prima facie
524 Chinese Consolidated Benevolent Assn. v. Chin
showing that the defendants were acting illegally). Adopting
the Coltrain approach to fees would mean awarding fees in
cases in which the defendant ultimately might not prevail
on a special motion to strike, or even prevail in the case,
and would risk penalizing a plaintiff for filing a meritori-
ous claim. Adopting the Tourgeman approach would mean
prolonging litigation simply for the purpose of resolving the
merits of a moot special motion to strike, undercutting the
special motion to strike’s effectiveness as a mechanism for
quickly disposing of a dispute arising out of certain types of
speech while at the same time burdening a plaintiff’s con-
ditional right to voluntarily dismiss under ORCP 54. See
Palmquist v. FLIR Systems, Inc., 189 Or App 552, 556-59,
77 P3d 637 (2003) (discussing the unconditional right to vol-
untary dismissal under ORCP 54 and reversing where trial
court failed to enter judgment of dismissal on the plaintiff’s
ORCP 54 notice and, instead, proceeded to rule on pending
summary judgment motion).
In fact, similar concerns led the California Supreme
Court to conclude in S. B. Beach Properties v. Berti, 39 Cal
4th 374, 138 P3d 713 (2006), that the defendants were not
entitled to attorney fees on their special motion to strike
which, in that case, the defendants had filed after the plain-
tiffs voluntarily dismissed their complaint. The court con-
cluded that under the “unambiguous” statutory language,
the defendants were not entitled to attorney fees because
they had not prevailed on their special motion to strike. The
court reasoned that, to prevail on the motion, the defen-
dants needed, at a minimum, to file it before the dismissal
of the case. Id. at 380, 138 P3d at 716. The court addition-
ally rejected the defendants’ contention that the court had
authority to resolve the motion under its authority to award
attorney fees “because defendants’ particular request is
based on a claimed entitlement arising from their success
on a motion they did not file.” Id. The court noted that, “[i]n
enacting the anti-SLAPP statute, the Legislature adopted
a balanced approach to end SLAPP suits at an early stage
while not jeopardizing meritorious actions.” Id. It observed
further that “[p]enalizing plaintiffs despite a voluntary dis-
missal would restrict their freedom of action in a manner
inconsistent with the [California Code of Civil Procedure’s
Cite as 316 Or App 514 (2021) 525
authorization of unconditional voluntary dismissal]. Id. at
382, 138 P3d at 718. Permitting defendants to recover
attorney fees and costs without filing a viable anti-SLAPP
motion would only prolong and likely increase the overall
costs of SLAPP litigation.” Id. In reaching that conclusion,
the court noted but did not adopt the California Court of
Appeals’ approach to attorney fees in cases in which the
voluntary dismissal occurred after the filing of a motion
but before its adjudication, declaring them inapposite.
Id. at 381, 138 P3d at 717. The court also rejected the defen-
dants’ contention that the anti-SLAPP statute should be
construed broadly to allow for an award of attorney fees,
pointing to the fact that such an interpretation would con-
flict with the plain text of the statute. Id. at 382, 138 P3d
at 717.
Although this case is in a different posture from
S. B. Beach Properties, in that the special motion to strike
had been filed before plaintiff voluntarily dismissed, the
same concerns are present here, as we have discussed, and
weigh against taking either of the approaches adopted by
the California Courts of Appeal. Thus, for all these reasons,
we are not persuaded by the path proposed by the dissenting
opinion and conclude, consistent with the plain text of ORS
31.152(3), that where, as here, defendants do not secure a
ruling on a special motion to strike before a voluntary dis-
missal, and the motion plays no role in the dismissal, then
ORS 31.152(3) does not allow for an award of attorney fees
for prevailing on the motion.2
Affirmed.
2
We note that the Uniform Law Commission recently completed a uniform
act to govern anti-SLAPP litigation, the Uniform Public Expression Protection
Act. Section 7 of the act explicitly addresses the issue of how voluntary dismissals
relate to attorney fee entitlement. Section 7(b) provides that when a case is volun-
tarily dismissed without prejudice before adjudication of the merits of a special
motion to strike, the moving party is entitled to the adjudication of the motion on
its merits for the purpose of determining what party is entitled to attorney fees.
Uniform Public Expression Protection Act § 7(b) (2020). Section 7(c) provides that
when a case is voluntarily dismissed with prejudice before the adjudication of the
merits of a special motion to strike, the moving party is deemed to have prevailed
on the motion for the purpose of attorney-fee entitlement. Id. § 7(c). Should the
Oregon legislature agree with either or both of those choices about how a volun-
tary dismissal bears on attorney fee entitlement, the Uniform Public Expression
Protection Act would provide a mechanism for expressing them.
526 Chinese Consolidated Benevolent Assn. v. Chin
KAMINS, J., dissenting.
Oregon’s anti-SLAPP statute, ORS 31.150 to 31.155,
is tasked with “nothing less than guaranteeing our basic
First Amendment rights for our citizens without their being
afraid of intimidation by powerful interests * * *.” Tape
Recording, House Committee on Judiciary, Subcommittee
on Civil Law, HB 2460, Mar 19, 2001, Tape 41, Side A (state-
ment of Rep Kurt Schrader).1 Granting attorney fees to
defendants with meritorious anti-SLAPP motions is a nec-
essary tool for achieving that goal.
The majority reasons that a defendant who is
voluntarily dismissed from a lawsuit after filing an anti-
SLAPP motion does not “prevail” and is therefore not enti-
tled to attorney fees, if the plaintiff offers reasons for dis-
missal unrelated to the SLAPP motion. 316 Or App at 516. I
respectfully dissent because, in my view, that interpretation
discounts the intent of the legislature and provides an end-
run around one of the core protections provided by Oregon’s
anti-SLAPP statute. The text, context, and legislative his-
tory of the attorney-fees provision, ORS 31.152(3), confirm
that a defendant who files a meritorious anti-SLAPP motion
is entitled to attorney fees regardless of a plaintiff’s rea-
son for abandoning the case after the fees have accrued.
Accordingly, in cases involving voluntary dismissals, I
would follow California’s majority approach of determining
whether a defendant would have prevailed on the special
motion to strike when deciding whether to award attorney
fees. See Tourgeman v. Nelson, 222 Cal App 4th 1447, 1457,
166 Cal Rptr 3d 729, 738 (2014) (concluding that the court
must make a determination of whether the defendant would
have prevailed on its motion to strike before awarding attor-
ney fees).2
1
Cf. Matthew D. Bunker & Emily Erickson, #AintTurningtheOtherCheek:
Using Anti-SLAPP Law as a Defense in Social Media, 87 UMKC L Rev 801, 802
(2019) (observing that SLAPPs were initially understood “as lawsuits brought by
wealthy and corporate interests bent on silencing and intimidating citizens and
activists” and that “anti-SLAPP statutes were intended to protect citizens from
David and Goliath power differences in litigation” (internal quotations marks
omitted)).
2
Indeed, the Uniform Law Commission recently adopted this precise
approach. Uniform Public Expression Protection Act § 7(b) (2020).
Cite as 316 Or App 514 (2021) 527
The text of ORS 31.152(3) provides that “[a] defen-
dant who prevails on a special motion to strike made under
ORS 31.150 shall be awarded reasonable attorney fees and
costs,” but it does not elaborate on the meaning of “prevails.”
(Emphasis added.) The majority reasons that a defendant
cannot be said to have “prevailed” on the motion where the
plaintiff’s dismissal of the underlying lawsuit is not related
to the anti-SLAPP motion. 316 Or App at 520. Whether a
defendant prevails on a meritorious anti-SLAPP motion,
however, cannot turn on the plaintiff’s actions after the
motion was filed. There is no textual support for the con-
clusion that the determination of whether or not a defen-
dant “prevails” for the purpose of attorney fees hinges on a
plaintiff’s motivations for dismissal. ORS 31.152(3); see also
ORCP 54 (A)(3) (recognizing that, for determining statuto-
rily authorized attorney fees, “[u]nless the circumstances
indicate otherwise, the dismissed party shall be considered
the prevailing party”). A party “prevails” on a motion when
it obtains a ruling from the court saying that the motion was
meritorious. Nothing in the text of the statute suggests that
ruling must occur before a case is voluntarily dismissed.
The pertinent legislative history—which we must
consider—strongly supports the conclusion that a plaintiff’s
reasons for dismissing a lawsuit play no role in determining
whether a defendant “prevails” for the purpose of attorney
fees, and instead, should depend on the merits of the anti-
SLAPP motion. See State v. Gaines, 346 Or 160, 177-78, 206
P3d 1042 (2009) (“[W]e do not end our analysis at text and
context, however. We next consider the legislative history
that the parties have proffered, along with any pertinent
legislative history that we independently have examined.”).
The attorney-fees provision, in particular, was intended to
deter plaintiffs from using the legal process to harass and
intimidate individuals. Tape Recording, House Committee
on Judiciary, Subcommittee on Civil Law, HB 2460,
Mar 19, 2001, Tape 41, Side A (statement of Rep Lane
Shetterly). Testifying in support of HB 2460, Senator Ginny
Burdick spoke of a constituent who successfully defended
against a lawsuit targeting their speech but found them-
selves saddled with legal-defense bills. The constituent
declared, “No sensible person of ordinary means is going
528 Chinese Consolidated Benevolent Assn. v. Chin
to spend $37,000 to exercise his First Amendment rights to
oppose a developer.” Tape Recording, House Committee on
Judiciary, Subcommittee on Civil Law, HB 2460, Mar 19,
2001, Tape 41, Side A (statement of Sen Ginny Burdick).
Indeed, references to the importance of the attorney-fees
provision as part of the anti-SLAPP mechanism permeated
discussions of the bill.3
Moreover, the legislature unmistakably intended
to adopt California’s approach for handling anti-SLAPP
cases, an approach that enables defendants to recover
attorney fees after a voluntary dismissal without hinging
the analysis on a plaintiff’s given reason for dismissal. See
Page v. Parsons, 249 Or App 445, 461, 277 P3d 609 (2012)
(“It was intended that California case law would inform
Oregon courts regarding the application of ORS 31.150 to
31.155.”). As the majority acknowledges, 316 Or App at 520,
Oregon’s similarly worded provision was “closely modeled
on the California statute * * *.” Tape Recording, House Com-
mittee on Judiciary, Subcommittee on Civil Law, HB 2460,
3
Representative Shetterly referenced the attorney-fees provision, stating:
“[I]f you are going to utilize the legal process for other than a substantial and
legitimate purpose, then there are going to be risks attendant with that and
those risks come in this motion to strike including attorney fees and damages
if the court determines that the case has been brought frivolously. And so
that seems to be a way to get at leveling the playing field, or at least giving
citizens a degree of comfort in coming forward, knowing that in the event of
litigation if it proves to be frivolous, if it proves to have been brought just for
the purpose of harassment and intimidation, there’s going to be a price to pay
by the party bringing that.”
Tape Recording, House Committee on Judiciary, Subcommittee on Civil Law, HB
2460, Mar 19, 2001, Tape 41, Side A (statement of Rep Lane Shetterly); see also
Tape Recording, House Committee on Judiciary, HB 2460, Apr 16, 2001, Tape 37,
Side A (statement of Rep Lane Shetterly) (“[T]he prospect of [a] special motion
to strike and attorney fees should discourage frivolous litigation, which is often
threatened and the tool for these kinds of lawsuits.”); Tape Recording, Senate
Committee on Judiciary, HB 2460, May 15, 2001, Tape 142, Side A (statement
of Rep Kurt Schrader) (relating to the question of whether to make the attor-
ney fees requirement reciprocal: “The back breaker for us on this whole issue
quite frankly, to where it becomes a gutted bill of no value, is the reciprocity
issue on attorney fees. * * * The bill becomes of no value then. Citizens will not
be able to defend themselves adequately.”); Tape Recording, Senate Committee
on Judiciary, HB 2460, May 15, 2001, Tape 143, Side A (comment of Chair John
Minnis) (critiquing a suggestion for reciprocal attorney fees: “It seems to me that
there would be kind of a chilling effect on the bill if you have a private citizen
who maybe doesn’t have resources or significant resources, involving yourself in
a defense can be very costly.”).
Cite as 316 Or App 514 (2021) 529
Mar 19, 2001, Tape 41, Side A (statement of Legislative
Counsel Dave Heynderickx); Tape Recording, House Com-
mittee on Judiciary, HB 2460, Apr 16, 2001, Tape 37, Side A
(statement of Rep Lane Shetterly) (“[HB 2460] is pat-
terned after a California statute.”). A sponsor of the bill,
Representative Shetterly, posited that, “while the cases
in California will not be controlling on the Oregon courts,
I think they would at least be informative and helpful to
courts and to litigants too * * *.” Tape Recording, House
Committee on Judiciary, Subcommittee on Civil Law, HB
2460, Mar 19, 2001, Tape 41, Side A (statement of Rep Lane
Shetterly). Representative Shetterly further observed that
“California has a solid body of law that demonstrates that
this process works * * *.” Tape Recording, House Committee
on Judiciary, HB 2460, Apr 16, 2001, Tape 37, Side A (state-
ment of Rep Lane Shetterly); see also Tape Recording, House
Committee on Judiciary, Subcommittee on Civil Law, HB
2460, Mar 19, 2001, Tape 41, Side A (statement of Legislative
Counsel Dave Heynderickx) (“[The California statute] has a
fair amount of case law on it, including appellate cases.”).
The majority reasons that we should not presume
that the legislature intended to adopt the construction of
California courts because, at the time of the bill’s passage,
the California Supreme Court had not weighed in on this
issue. 316 Or App at 520. Oregon’s anti-SLAPP statute was
passed in 2001 and came into effect in 2002. Or Laws 2001,
ch 616, §§ 1 - 3. However, before 2001, three intermediate
appellate courts in California had concluded that a defendant
may qualify as a “prevailing party” under the attorney-fees
provision of the anti-SLAPP statute, even when the SLAPP
suit had been voluntarily dismissed prior to a judicial rul-
ing on the motion to strike. Kyle v. Carmon, 71 Cal App 4th
901, 918-19, 84 Cal Rptr 2d 303, 314-15 (1999); Moore v. Liu,
69 Cal App 4th 745, 751, 81 Cal Rptr 2d 807, 811 (1999), as
modified (Feb 5, 1999), reh’g den, (Feb 22, 1999); Coltrain v.
Shewalter, 66 Cal App 4th 94, 107, 77 Cal Rptr 2d 600, 608
(1998), as modified (Sept 4, 1998).
Indeed, by 2004, and relying almost entirely on
cases that were decided before Oregon’s anti-SLAPP law
was passed, California appellate courts acknowledged that
the issue of whether “a plaintiff may * * * avoid liability for
530 Chinese Consolidated Benevolent Assn. v. Chin
attorney fees and costs by voluntarily dismissing a cause
of action to which a SLAPP motion is directed” was “set-
tled” under California law. Sylmar Air Conditioning v.
Pueblo Contracting Services, Inc., 122 Cal App 4th 1049,
1054, 18 Cal Rptr 3d 882, 885-86 (2004) (emphasis omitted).
All California Courts of Appeal agree that dismissal of a
SLAPP suit prior to a ruling on the merits does not preclude
a court from finding that the movant prevailed for the pur-
pose of the attorney-fees provision. See Roe v. Halbig, 29 Cal
App 5th 286, 304, 240 Cal Rptr 3d 104, 117 (2018) (observing
that “Courts of Appeal have uniformly held that a defendant
may qualify as the ‘prevailing party’ under the anti-SLAPP
statute even where the SLAPP suit has been voluntarily
dismissed prior to a judicial ruling on the anti-SLAPP
motion to strike”).4 Although the California Supreme Court
has not squarely addressed this issue, it has acknowledged
this line of California intermediate appellate decisions. See
S.B. Beach Properties v. Berti, 39 Cal 4th 374, 381 & n 2, 138
P3d 713, 717 & n 2 (2006) (acknowledging Courts of Appeal
decisions allowing attorney fees notwithstanding a volun-
tary dismissal, but declining to extend those decisions to
cases where the defendant had not yet filed a potentially
meritorious anti-SLAPP motion).
The majority correctly points out that, “had the
California Supreme Court construed the statute before the
date of Oregon’s enactment, we would presume that the
legislature intended to adopt that construction.” 316 Or
App at 520. However, that presumption does not preclude
the adoption of well-settled interpretations of intermedi-
ate appellate courts from that jurisdiction. See, e.g., State
v. Guzman/Heckler, 366 Or 18, 30, 455 P3d 485 (2019)
4
As the majority points out, one California case expresses a different view as
to the procedure for determining whether to award attorney fees in that circum-
stance, 316 Or App at 518; however, there is no disagreement as to their avail-
ability. Coltrain, 66 Cal App 4th at 107, 77 Cal Rptr 2d at 608 (concluding that the
trial court may determine the prevailing party for the purpose of attorney fees by
determining which party realized its objectives in the litigation); Tourgeman, 222
Cal App 4th at 1457, 166 Cal Rptr 3d at 738 (concluding that the court must make
a determination of whether the defendant would have prevailed on its motion to
strike before awarding attorney fees). Most of the California Courts of Appeal
have adopted the Tourgeman approach when dealing with voluntary dismissals.
Roe, 29 Cal App 5th at 305, 240 Cal Rptr 3d at 118 (recognizing that “a majority
of the Courts of Appeal” follow the Tourgeman approach).
Cite as 316 Or App 514 (2021) 531
(“[A]lthough we have accorded greater significance to deci-
sions of the highest court of another jurisdiction, we have
never altogether discounted decisions of lower appellate
courts of that jurisdiction, even in the absence of legisla-
tive history specifically indicating that our legislature was
aware of those decisions.”); State v. Edmonds, 364 Or 410,
422-24, 435 P3d 752 (2019) (relying on federal circuit court
decisions as context for the interpretation of an OEC pro-
vision); Lindell v. Kalugin, 353 Or 338, 355, 297 P3d 1266
(2013) (treating a consistent pattern of lower “federal court
decisions as at least highly persuasive as to the intentions of
the Oregon legislature in borrowing from the federal rules”).
Given the references in the legislative history to the value of
California case law to the interpretation of the statute, and
the importance of the attorney-fees provision to its enforce-
ment, we, as both parties acknowledge and the trial court
concluded, should consider this “settled” set of California
case law and interpret our statute in a manner consistent
with that view.
Finally, the context of the provision within the
statute also undermines the majority’s conclusion. ORS
31.152(4), the section immediately after the attorney-fees
provision, provides that “[t]his section * * * [is] to be liberally
construed in favor of the exercise of the rights of expression
described in ORS 31.150 (2).” That provision instructs us to
look to the rights of defendants, not the actions or motiva-
tions of a plaintiff, when construing the attorney-fees pro-
vision of the anti-SLAPP statute. Additionally, such a pro-
vision typically reveals a legislative intent for the statute
to be interpreted broadly to protect the rights of citizens
even though circumstances may arise that are not neatly
encompassed by the language of the statute. See State ex rel
Dewberry v. Kitzhaber, 259 Or App 389, 403, 313 P3d 1135
(2013), rev den, 354 Or 838 (2014) (“Moreover, even were
there any lingering doubt, we must construe the extent of
the Governor’s authority to sign an agreement with a tribe
under the terms of ORS 190.110(3) broadly, because the leg-
islature mandated that the provisions of ORS 190.110 be lib-
erally construed.” (Internal quotation marks omitted.)); see
also Gearhart v. PUC, 356 Or 216, 244, 339 P3d 904 (2014)
(following the legislature’s direction that laws administered
532 Chinese Consolidated Benevolent Assn. v. Chin
by the Public Utility Commission (PUC) should be “liberally
construed” to conclude that the statute contained implied
authority of the PUC to order a utility to issue refunds).
The majority suggests that a problem with the dis-
sent, and presumably California’s case law,5 is that there
is no authority for the proposition that a trial court retains
jurisdiction to determine attorney fees once a dismissal ren-
ders an action moot. 316 Or App at 522-23. But the authority
to award fees usually arises after a case is concluded. See,
e.g., ORCP 68 C(4)(a) (stating that a party seeking attorney
fees shall file their attorney fee statement “not later than
14 days after entry of a judgment”); ORS 20.096(1) (provid-
ing that “the party that prevails on the claim shall be enti-
tled to reasonable attorney fees”); ORS 20.077(2) (“For the
purposes of making an award of attorney fees on a claim, the
prevailing party is the party who receives a favorable judg-
ment or arbitration award on the claim.”). As part of that
process, courts routinely hold hearings and evaluate various
aspects of the now-moot underlying litigation that may or
may not have previously received a judicial determination—
including the conduct giving rise to the litigation and the
reasonableness of the claims and defenses. See ORS 20.075(1)
(requiring a court to consider the “conduct of the parties in
the transactions or occurrences that gave rise to the liti-
gation” and the “objective reasonableness of the claims and
defenses” when assessing fees); Ellison v. Dept. of Rev., 362
5
Like Oregon, California law also provides that, following the entry of a vol-
untary dismissal, a court generally loses jurisdiction to conduct any proceedings
as to that party. See, e.g., Frank Annino & Sons Construction, Inc. v. McArthur
Restaurants, Inc., 215 Cal App 3d 353, 357, 263 Cal Rptr 592, 595 (1989) (acknowl-
edging that “the general rule” is that a court loses jurisdiction over a person
once they are dismissed from the action); Pittman v. Beck Park Apartments Ltd.,
20 Cal App 5th 1009, 1022, 230 Cal Rptr 3d 113, 123 (2018) (recognizing that “a
plaintiff’s voluntary dismissal of an action generally deprives the court of juris-
diction in the case”).
Indeed, the California Courts of Appeal reckoned directly with this issue
in the case of voluntary dismissals of SLAPP suits. See Moore, 69 Cal App 4th
at 751 n 3, 81 Cal Rptr 2d at 811 n 3 (“It is the general rule that once a person
is dismissed from a lawsuit she is no longer a party to it and the court lacks
jurisdiction to conduct further proceedings respecting her. * * * However, courts
have carved out a number of exceptions to this rule in order to give meaning and
effect to a former party’s statutory rights. Even after a party is dismissed from
the action [s]he may still have collateral statutory rights which the court must
determine and enforce. These include the right to statutory costs and attorney’s
fees[.]” (Internal quotation marks and citations omitted; emphasis added.)).
Cite as 316 Or App 514 (2021) 533
Or 148, 166-68, 404 P3d 933 (2017), adh’d to as modified
on recons, 362 Or 527, 412 P3d 201 (2018) (evaluating mer-
its of parties’ positions in litigation to determine who pre-
vailed despite neither receiving relief sought in determin-
ing attorney fee award); Beaverton School Dist. 48J v. Ward,
281 Or App 76, 83-85, 384 P3d 158 (2016) (evaluating merits
of defendants’ argument in the underlying litigation post-
settlement in determining attorney fee award).
The cases cited by the majority to support the prop-
osition that Oregon courts lack jurisdiction to conduct this
routine endeavor are limited to the question of whether a
request for attorney fees can revive a case that has become
moot due to real world events—not due to the dismissal of
the case. See 316 Or App at 521 (citing Nordbye v. BRCP/GM
Ellington, 271 Or App 168, 180, 349 P3d 639 (2015) (declara-
tory judgment claim as to requirements of low-income hous-
ing program was moot once plaintiff no longer qualified for
the program); Birchall v. Miller, 314 Or App 521, 523, 497
P3d 1268 (2021) (dispute over possession of premises became
moot when defendant vacated the premises)). A voluntary
dismissal, on the other hand, cannot moot a claim for pur-
poses of attorney fees. The very concept is inconsistent with
the rule that voluntary dismissals pursuant to ORCP 54 (A)
do “not, at least as a matter of law, negate or reduce plain-
tiffs’ exposure to attorney fees.” Goodsell v. Eagle-Air Estates
Homeowners Assn., 280 Or App 593, 605, 383 P3d 365 (2016),
rev den, 360 Or 752 (2017). Indeed, evaluations of aspects
of the underlying claim following a voluntary dismissal is
required by the rule itself. ORCP 54 (A)(3) (“Unless the cir-
cumstances indicate otherwise, the dismissed party shall be
considered the prevailing party.” (Emphasis added.)).
Even if the cases cited by the majority were to pro-
scribe an adjudication on the merits, the majority acknowl-
edges that the legislature could displace this rule. 316 Or
App at 521. Here, as the legislative history unmistakably
reflects, the legislature did just that. Indeed, the attorney-
fees provision was meant to be the principal (if not the only)
deterrent for spurious SLAPP suits. Extending the rule set
out in Nordbye and Birchall to cases involving voluntary
dismissals of cases with pending meritorious anti-SLAPP
motions is irreconcilable with that intent.
534 Chinese Consolidated Benevolent Assn. v. Chin
The majority’s reliance on the California Supreme
Court’s reasoning in S.B. Beach Properties to support the
contention that California courts have “similar concerns”
in awarding attorney fees when a plaintiff voluntarily dis-
misses cannot be squared with the circumstances of that
case. 316 Or App at 524-25. The question there was whether
a party could be awarded attorney fees for prevailing on a
motion that they never filed. S.B. Beach Properties, 39 Cal
4th at 377, 138 P3d at 714. In other words, it is so entrenched
in California law that a defendant can recover attorney fees
after a voluntary dismissal in an anti-SLAPP suit that the
Supreme Court considered granting fees to a party for pre-
vailing on an unfiled motion.
In declining to take that step, the court acknowl-
edged that “the filing of a viable anti-SLAPP motion [is] a
necessary trigger for both an imposed judgment of dismissal
and an award of fees and costs” and drew a “bright line”
of requiring a defendant to file the motion to avoid forcing
trial courts to “evaluate the viability of an incomplete anti-
SLAPP motion[.]” Id. at 381-83, 138 P3d at 717-18. That
approach balanced the need to allow plaintiffs “the freedom
to reconsider the wisdom of their actions without penalty
before defendants have incurred clearly identifiable and
recoverable legal fees” while still “expeditiously reliev[ing]
[defendants] of the burden a SLAPP suit imposes, because
they must generally file their anti-SLAPP motion within
60 days of the service of the complaint.” Id. at 382, 138 P3d
at 718 (internal quotation marks omitted). The court rea-
soned that “the filing of a viable anti-SLAPP motion [is] a
prerequisite to recovering any fees and costs. As a matter
of logic, a defendant must file a special motion to strike in
order to prevail on one.” Id. at 379, 138 P3d at 716. Contrary
to the majority’s suggestion, California courts have never
expressed any “concerns” in awarding attorney fees to a
defendant that obtained a voluntary dismissal after actu-
ally filing an anti-SLAPP motion.6
6
The majority further contends that the California Supreme Court “did not
adopt” the intermediate appellate courts’ approach of awarding attorney fees in
cases that had been voluntarily dismissed but rather declared them “inapposite.”
316 Or App at 525. However, the court distinguished those cases not because it
disagreed, but because “[i]n each, the plaintiff voluntarily dismissed the action
Cite as 316 Or App 514 (2021) 535
By enabling a plaintiff who abuses the legal process
to avoid fee liability simply by voluntarily dismissing the
case and claiming that the dismissal was unrelated to the
anti-SLAPP motion, the majority’s opinion guts the protec-
tion currently afforded by the anti-SLAPP statute. Under
that interpretation, a plaintiff can flout the purposes of
the statute and use the legal system to force citizens into
costly litigation that infringes on their free speech, and
then evade the penalty envisioned by the legislature sim-
ply by dismissing the case before the motion can be heard
by a trial court. See Moore, 69 Cal App 4th at 752, 81 Cal
Rptr 2d at 812 (“Persons who threaten the exercise of anoth-
er’s constitutional rights to speak freely and petition for the
redress of grievances should be adjudicated to have done so,
not permitted to avoid the consequences of their actions by
dismissal of the SLAPP suit when a defendant challenges
it. An adjudication in favor of the defendant on the merits
of the defendant’s motion to strike provides both financial
relief in the form of fees and costs, as well as a vindication
of society’s constitutional interests.”). Nothing in the text,
context, or legislative history supports the conclusion that
the analysis turns on the plaintiff’s reasons for dismissal.7
That approach is problematic not only because it
places the power in the hands of a plaintiff in a SLAPP
suit, an outcome the legislative history does not support,
but because it is practically difficult to enforce. The record
here provides an apt example—a plaintiff can always iden-
tify other reasons to justify dismissal. Although plaintiff
here contends that its dismissal was due to the fact that the
after the defendant filed an anti-SLAPP motion.” S.B. Beach Properties, 39 Cal
4th at 381, 138 P3d at 717 (emphasis added).
7
Indeed, the attorney-fees provision was meant to go beyond existing tort
reform measures that protect citizens from frivolous lawsuits. See, e.g., ORS
20.105(1) (awarding attorney fees if a party “willfully disobeyed a court order or
that there was no objectively reasonable basis for asserting the claim, defense or
ground for appeal”); Tape Recording, Senate Committee on Judiciary, HB 2460,
May 15, 2001, Tape 142, Side A (statement of Rep Kurt Schrader) (“The previ-
ous reform unfortunately was not enough, and that’s evident just by the sheer
volume of problem that has come up since that time.”); Tape Recording, Senate
Committee on Judiciary, HB 2460, May 15, 2001, Tape 142, Side A (statement of
Legislative Counsel Dave Heynderickx) (“[I]t’s pretty hard to get an award under
ORCP 17, for instance, of attorney fees. * * * [HB 2460] is more aimed at the issue
of getting the case out of court fast. * * * The other frivolous lawsuit [statutes]
aren’t aimed so much at the timing issue * * *.”).
536 Chinese Consolidated Benevolent Assn. v. Chin
current board of directors had been functioning normally
and there was an election for a new board approaching, the
voluntary dismissal came after the trial court denied the
motion for a preliminary injunction. In that decision, by a
different judge than the one resolving the attorney fees ques-
tion, the court concluded that plaintiff had little likelihood
of success on the merits and observed: “[Y]ou’re asking for a
prior restraint on speech, you’re asking to prohibit posting,
publishing, making oral or written statement or announce-
ment. That’s all constitutionally protected speech.” A vol-
untary dismissal following a decision implying that plain-
tiff’s lawsuit both lacked merit and constituted an improper
restraint on speech undermines any assertion that the dis-
missal is unrelated to the basis for the anti-SLAPP motion.8
Defendants here took every step envisioned by the legisla-
ture to avoid being saddled with the bill for this litigation,
even going so far as to receive vindication as to their speech
rights from the trial court.
Because the attorney-fees provision of the anti-
SLAPP statute was intended to be a safeguard for defen-
dants who are exercising speech rights and a deterrent to
well-funded plaintiffs who are intent on silencing them,
I disagree with a construction placing the power to avoid
fees in the hands of the plaintiff. Accordingly, I respectfully
dissent and would reverse and remand to the trial court to
determine whether defendants would have prevailed on the
merits of their motion to strike for the purpose of determin-
ing whether to award attorney fees.
8
The trial court resolving the issue of attorney fees referenced the “undis-
puted record” in its decision regarding the reasons for plaintiff’s dismissal.
However, when the trial court asked if defense counsel would stipulate that the
reasons for the dismissal were unrelated to the anti-SLAPP motion, defense
counsel responded: “I want to say that I would stipulate to that being [the partic-
ular plaintiff’s] testimony on the issue. * * * I’m not going to concede that that was
the point.” Additionally, after the decision was made by the trial court regarding
attorney fees, defense counsel submitted a declaration in support of their motion
for a hearing on the substance of the anti-SLAPP motion, which contained an
email from one of the plaintiffs, stating that “we were advised not to pursue the
case since we were not granted the injunction.”