Mouktabis v. Clackamas County Assessor

763

Submitted February 3 on respondents’ motion to dismiss filed March 30, appel-

lant’s response and motion for sanctions filed May 11, respondents’ reply filed

June 1, and respondents’ motions for ORS 19.360 review filed May 8; motion

to dismiss denied, motion for sanctions denied, motions for ORS 19.360 review

denied, supplemental money judgments vacated and remanded, otherwise

affirmed September 7, 2023

Nour Eddine MOUKTABIS,

Plaintiff-Appellant,

v.

CLACKAMAS COUNTY,

a political subdivision of the State of Oregon et al.,

Defendants,

and

Sandra M. FABER,

an individual,

and M. A., an individual,

Defendants-Respondents.

Multnomah County Circuit Court

21CV14422; A177553

536 P3d 1037

Plaintiff appeals the trial court’s decision to grant anti-SLAPP motions filed

by his former wife and her attorney. After he was acquitted on a contempt charge

stemming from a report to police that he violated a restraining order, plaintiff

sued defendants for false arrest, false imprisonment, malicious prosecution, and

abuse of process. The trial court granted defendants’ special motions to strike,

dismissed them from the case, and awarded them attorney fees and prevailing

party fees. Held: The trial court did not err by granting the anti-SLAPP motions.

Defendants’ statements and conduct, from which plaintiff’s claims arose, con-

stituted protected petitioning activity regarding an issue of public interest.

Plaintiff failed to present substantial evidence to support a prima facie case.

Although an award of attorney fees to defendants was mandatory, the Court of

Appeals vacated and remanded the supplemental money judgments because the

trial court failed to consider required factors when determining the amount of

fees.

Motion to dismiss denied; motion for sanctions denied; motions for ORS

19.360 review denied; supplemental money judgments vacated and remanded;

otherwise affirmed.

Shelley D. Russell, Judge.

Nour Eddine Mouktabis filed the briefs pro se.

764 Mouktabis v. Clackamas County Assessor

Daniel L. Duyck and Duyck Law, LLC, filed the brief for

respondent M. A.

Michael T. Stone, Brisbee & Stockton LLC, and Hood

Stone Stockton filed the brief for respondent Sandra M.

Faber.

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

PAGÁN, J.

Motion to dismiss denied; motion for sanctions denied;

motions for ORS 19.360 review denied; supplemental money

judgments vacated and remanded; otherwise affirmed.

Cite as 327 Or App 763 (2023) 765

PAGÁN, J.

In this case, which concerns Oregon’s anti-SLAPP

statute, ORS 31.150, we address three main questions.1

First, we consider whether reporting a perceived violation

of a restraining order is an issue of public interest under

ORS 31.150(2)(d). Second, we address whether plaintiff pre-

sented substantial evidence to support a prima facie case as

required by ORS 31.150(3). Third, we determine whether the

trial court correctly resolved motions for attorney fees. We

conclude that, because reports to the police about whether

court orders are being violated implicate public safety and

effective governance, such reports are matters of public

interest and plaintiff’s claims arise from them. We further

conclude that plaintiff failed to meet his burden of produc-

tion to defeat the special motions to strike because there was

probable cause to arrest plaintiff and he failed to provide

admissible evidence of malice or ulterior motives. However,

as explained below, we vacate and remand the supplemen-

tal money judgments awarding attorney fees, costs, and

enhanced prevailing party fees.

Defendant M. A. is plaintiff’s former wife, and defen-

dant Sandra Faber was her attorney.2 Faber represented M.

A. in matters relating to plaintiff’s and M. A.’s divorce and

custody proceedings. After plaintiff was acquitted on a con-

tempt charge stemming from M. A.’s report that he violated

a restraining order, plaintiff filed claims against M. A.,

Faber, and others, for false arrest, false imprisonment, mali-

cious prosecution, and abuse of process. M. A. and Faber

each filed special motions to strike the claims against them.

The trial court granted the motions and entered a limited

judgment dismissing M. A. and Faber from the case. The

trial court subsequently awarded defendants their attorney

1

The acronym “SLAPP” stands for “strategic lawsuit against public partici-

pation.” Dept. of Human Services v. Lindsey, 324 Or App 312, 313, n 1, 525 P3d 470

(2023). The legislature amended ORS 31.150 during the pendency of this appeal.

See Or Laws 2023, ch 71, § 1 (effective Jan 1, 2024). Our analysis is not affected

by those amendments, and we cite the current version of the statute.

2

Pursuant to Joint CJO 23-012/23-01, effective April 1, 2023, we refer to

plaintiff’s former wife using her initials only. Occasionally, we refer to M. A. and

Faber collectively as defendants. Although there are additional defendants in the

underlying action, only M. A. and Faber appear on appeal and our use of “defen-

dants” refers to the two of them.

766 Mouktabis v. Clackamas County Assessor

fees and costs pursuant to ORS 31.152(3) and awarded

them an enhanced prevailing party fee pursuant to ORS

20.190(3). Plaintiff appeals. For the reasons explained below,

we affirm the limited judgment of dismissal, but we vacate

the supplemental money judgments and remand for further

proceedings on the amount of attorney fees, costs, and pre-

vailing party fees.

To frame our discussion, we begin with some back-

ground regarding the anti-SLAPP statute. “ORS 31.150 pro-

vides a mechanism for a defendant to move to strike certain

nonmeritorious claims predicated on speech and petitioning

activity potentially entitled to constitutional protection.”

Tokarski v. Wildfang, 313 Or App 19, 21, 496 P3d 22, rev den,

368 Or 788 (2021). The purpose of ORS 31.150 is “to provide

for the dismissal of claims against persons participating in

public issues * * * before the defendant is subject to substan-

tial expenses in defending against them.” Staten v. Steel, 222

Or App 17, 29, 191 P3d 778 (2008), rev den, 345 Or 618 (2009).

Oregon courts analyze such motions, which are

referred to as “special motion[s] to strike,” using a “two-step

burden-shifting process.” Young v. Davis, 259 Or App 497,

501, 314 P3d 350 (2013). First, “the court must determine

whether the defendant has met its initial burden to show that

the claim against which the motion is made arises out of one

or more protected activities described in” ORS 31.150(2). Id.

(Internal quotation marks omitted.) The subsection identifies

four categories of claims subject to a special motion to strike:

“A special motion to strike may be made under this

section against any claim in a civil action that arises out of:

“(a) Any oral statement made, or written statement

or other document submitted, in a legislative, executive or

judicial proceeding or other proceeding authorized by law;

“(b) Any oral statement made, or written state-

ment or other document submitted, in connection with an

issue under consideration or review by a legislative, execu-

tive or judicial body or other proceeding authorized by law;

“(c) Any oral statement made, or written state-

ment or other document presented, in a place open to the

public or a public forum in connection with an issue of pub-

lic interest; or

Cite as 327 Or App 763 (2023) 767

“(d) Any other conduct in furtherance of the exer-

cise of the constitutional right of petition or the constitu-

tional right of free speech in connection with a public issue

or an issue of public interest.”

ORS 31.150(2). If the court determines that a claim falls

within one of those four categories, then “the burden shifts

to the plaintiff in the action to establish that there is a

probability that the plaintiff will prevail on the claim by

presenting substantial evidence to support a prima facie

case.” ORS 31.150(3). “[T]he plaintiff must submit sufficient

evidence from which a reasonable trier of fact could find

that the plaintiff met its burden of production.” Handy v.

Lane County, 360 Or 605, 622-23, 385 P3d 1016 (2016). If

the plaintiff does so, then the trial court must deny the spe-

cial motion to strike. “A defendant who prevails on a special

motion to strike made under ORS 31.150 shall be awarded

reasonable attorney fees and costs.” ORS 31.152(3).

I. FACTS

The pertinent facts are largely procedural. In

April 2021, plaintiff filed a complaint against M. A., Faber,

Clackamas County, the Oregon City Police Department

(OCPD), and the West Linn Police Department (WLPD).3

Plaintiff alleged that M. A., acting “in concert with” Faber,

“reported to OCPD that [p]laintiff violated a restraining

order by sending her a text message.” M. A. contacted Faber

“for advice and after receiving that advice, she called to

report the alleged violation.” M. A. showed a police officer

a message from plaintiff’s telephone number, which stated,

“Peace be with you.” M. A. allegedly told the officer that

plaintiff “sent the text as a greeting to have additional con-

versation in her opinion.”

After confirming that “a valid restraining order was

in effect which prohibited contact by phone or by text mes-

sage with the exception being an emergency pertaining to

the children,” officers went to plaintiff’s residence.4 Plaintiff

3

Plaintiff filed an amended complaint in June 2021. We focus on the allega-

tions in the amended complaint.

4

Under the Family Abuse Prevention Act (FAPA), victims of abuse may peti-

tion the circuit court for relief and custody of children. ORS 107.710. After a

hearing, the court may enter a restraining order. ORS 107.718. Here, the FAPA

restraining order prohibited plaintiff from contacting M. A., and it specified

768 Mouktabis v. Clackamas County Assessor

denied sending a text message. Nevertheless, after offi-

cers arrested plaintiff and transported him to Clackamas

County Jail, he spent the night in jail, and he was released

the following day.

In the criminal case that was filed against him,

plaintiff argued that he never sent a text message to M. A.,

“and that, instead, a Whatsapp greeting intended for [p]lain-

tiff’s mother was accidentally sent to [M. A.’s] Whatsapp[.]”

Plaintiff was acquitted of the charge. After his acquittal,

plaintiff asserted causes of action against his former wife,

Faber, OCPD, and WLPD, for false arrest, false imprison-

ment, malicious prosecution, and abuse of process. Plaintiff

asserted a cause of action against Clackamas County,

OCPD, and WLPD for negligence. Regarding the claims

against M. A. and Faber, plaintiff alleged that they inten-

tionally caused him “to be arrested based on false allega-

tions and pretext.” He alleged that they “acted with malice

with the primary purpose of harassing and intimidating”

him. The amended complaint also alleged other incidents in

which M. A. made false reports to OCPD that plaintiff had

violated the restraining order.

M. A. and Faber each filed special motions to strike

under ORS 31.150. Plaintiff opposed the motions. The trial

court held a hearing on the motions and granted them.

First, the trial court determined that plaintiff’s claims

against defendants arose from protected activity under

ORS 31.150(2)(d). As explained by the trial court,

“While there does not appear to be any caselaw

directly on point as to whether reports of violations of pro-

tective orders are protected under ORS 31.150, as a pub-

lic policy matter such reports must be considered a matter

of public interest and must be protected to avoid the risk

of subjecting protected parties to fear of civil liability for

reporting violations of the orders.

“The Court finds that [M. A.]’s reports to police

regarding perceived violations of the FAPA restraining

prohibited kinds of contact, including contact by email, social media, or any other

electronic method, and by phone or text message. It provided an exception per-

mitting plaintiff to send a text message if there was an emergency pertaining

to their children. ORS 107.718 was amended by Oregon Laws 2023, chapter 140,

section 1, but our analysis does not concern the amendments.

Cite as 327 Or App 763 (2023) 769

order by [p]laintiff are matters of public interest and are

subject to ORS 31.150. In addition, the Court finds that * * *

Faber’s conduct in advising her client is protected attorney-

client conduct and absent any evidence of malice or bad

intent is not actionable by [p]laintiff.”

Second, the trial court determined that plaintiff failed to

present substantial evidence to support a probability of suc-

cess on his claims:

“The admissible and undisputed evidence offered

by [p]laintiff in support of his false arrest and false impris-

onment claims shows that he was arrested by the police on

May 13, 2019, and that he was acquitted after a trial on the

issue, not because [M. A.] made a false report of contact,

but because [p]laintiff was able to successfully argue that

the contact was unintentional. Plaintiff offers absolutely no

admissible evidence that [p]laintiff’s arrest was unlawful,

an essential element of each of those claims.”

The trial court arrived at similar conclusions

regarding plaintiff’s claims for malicious prosecution and

abuse of process, stating that plaintiff “offers absolutely no

evidence other than his speculation that [defendants] * * *

had malicious intent * * *, that there was a lack of probable

cause for the prosecution * * *, or that [d]efendants insisted

on continuation of the prosecution against [p]laintiff for the

May 13, 2019 incident.” There was also no evidence of an

ulterior purpose or a willful and improper act, which are

required elements for a claim of abuse of process. As the trial

court put it, “the divorce and custody proceedings between

[plaintiff] and [M. A.] are exceedingly contentious, however,

that fact with nothing else, is not substantial evidence to

support a probability of success on the merits.” Based on

its order granting the anti-SLAPP motions, the trial court

entered a limited judgment dismissing defendants from the

case.

Defendants sought attorney fees and costs. Plaintiff

filed objections. After a hearing, the trial court granted the

motions. The court awarded attorney fees to M. A. in the

amount of $40,600, and it awarded attorney fees to Faber

in the amount of $11,525.50. The trial court also awarded

defendants an enhanced prevailing party fee in the amount

of $5,000 each. Plaintiff appeals.

770 Mouktabis v. Clackamas County Assessor

II. ANALYSIS

A. Defendants’ Motion to Dismiss

Preliminarily, we address defendants’ motion to dis-

miss the appeal. They move to dismiss on the ground that

plaintiff is in contempt of court, a bench warrant has been

issued for his arrest, and he has absconded from the juris-

diction of the court. In December 2022, plaintiff was found

to be in contempt of the judgment entered in his dissolution

case with M. A. for failing to transfer a financial account

to M. A., and for failing to pay spousal support, child sup-

port, and an equalizing judgment. When plaintiff failed to

appear for sentencing, the court issued a bench warrant for

his arrest. Defendants believe plaintiff left the country.

In seeking dismissal of this appeal, defendants rely

primarily on Pruett and Pruett, 185 Or App 669, 60 P3d 1094,

rev den, 335 Or 443 (2003). In Pruett, the appellant failed to

comply with the terms of the contempt judgment and mod-

ification order that was the subject of his appeal. Id. at 671.

Here, by contrast, plaintiff was found to be in contempt for

failing to comply with the terms of a judgment that is not

the subject of this appeal. In State v. Broom, 121 Or 202,

210, 253 P 1044 (1927), the Oregon Supreme Court declined

to exercise its discretion to dismiss an appeal even though

the defendant was a fugitive from justice in two other cases.

Similarly, here, assuming for purposes of this case that we

have discretion to dismiss the appeal, we decline to exercise

our discretion based on the fact that plaintiff has been found

to be in contempt of court in another case. We therefore deny

defendants’ motion to dismiss.5

B. Defendants’ Special Motions to Strike

1. Plaintiff’s claims arise out of protected conduct.

In his first assignment of error, plaintiff argues that

the trial court erred in determining that his claims arose

out of protected activity. We review a ruling on a special

motion to strike for legal error. Plotkin v. SAIF, 280 Or App

5

We deny without discussion plaintiff’s motion for sanctions, which was filed

concurrently with his response to defendants’ motion to dismiss. We also deny

as moot the two motions filed by defendants for ORS 19.360 review of trial court

orders.

Cite as 327 Or App 763 (2023) 771

812, 815, 385 P3d 1167 (2016), rev den, 360 Or 851 (2017). “In

conducting that review, we take the facts from the pleadings

and from the supporting and opposing declarations and affi-

davits submitted to the trial court, ORS 31.150(4), and we

view the facts underlying plaintiff’s claim in the light most

favorable to plaintiff.” Id. “To determine whether a claim

arises out of conduct described in ORS 31.150(2), we exam-

ine the conduct that is targeted by the claims in the com-

plaint.” Dept. of Human Services v. Lindsey, 324 Or App 312,

318, 525 P3d 470 (2023). “The inquiry turns on the nature

of the claims asserted against a defendant and the alleged

actions of the defendant giving rise to those claims[.]” Id. at

319.

Here, plaintiff alleged that his former wife con-

tacted the police, based on advice provided by her attorney,

to report a violation of a FAPA restraining order. Plaintiff

alleged that the report to the police was false. In his decla-

ration in opposition to M. A.’s special motion to strike, plain-

tiff claimed that “[b]y initiating the report, [M. A.] intended

for me to be arrested and confined.” Plaintiff also described

other occasions when his former wife, according to plaintiff,

made false statements to law enforcement and others.

In our view, plaintiff’s claims against defendants

arise from statements or conduct protected under ORS

31.150(2)(d), which protects “conduct in furtherance of the

exercise of the constitutional right of petition or the consti-

tutional right of free speech in connection with a public issue

or an issue of public interest.”6 Focusing on the right of peti-

tion, the First Amendment to the United States Constitution

protects the right of the people “to petition the Government

for a redress of grievances.”7 “A petition conveys the special

6

Plaintiff claims that defendants did not argue below that the alleged con-

duct was protected under ORS 31.150(2)(d). We disagree. Although the argu-

ments during the hearing focused on whether reports to the police were made

in connection with a judicial proceeding, M. A. argued in her special motion to

strike that subsection (2)(d) applied. In ruling that defendants’ conduct was pro-

tected, it is not clear whether the trial court relied on subsection (2)(c) or subsec-

tion (2)(d). Because the speech at issue concerned a request for assistance from

the state, we focus on subsection (2)(d). The text of subsection (2)(d) was amended

by Oregon Laws 2023, chapter 71, section 1, effective January 1, 2024, but our

analysis does not address or concern the amendments.

7

When construing the scope of subsection (2)(d), we consider whether the

conduct is protected by the First Amendment to the United States Constitution.

772 Mouktabis v. Clackamas County Assessor

concerns of its author to the government and, in its usual

form, requests action by the government to address those

concerns.” Borough of Duryea, Pa. v. Guarnieri, 564 US 379,

388-89, 131 S Ct 2488, 180 L Ed 2d 408 (2011). Likewise,

Article I, section 8, and Article I, section 26, of the Oregon

Constitution protect a similar right.8

Regarding that right of petition, we assume that

the legislature intended to give words of common usage

their ordinary meaning, and we often consult dictionaries

for guidance. Kinzua Resources v. DEQ, 366 Or 674, 681, 468

P3d 410 (2020). Definitions of “petition” include “an earnest

request,” and “a formal written request addressed to an

official person or organized body.” Webster’s Third New Int’l

Dictionary 1690 (unabridged ed 2002). The right of petition

has been defined as “[t]he constitutional right—guaranteed

by the First Amendment—of the people to make formal

requests to the government, as by lobbying or writing let-

ters to public officials.” Black’s Law Dictionary 1350-51 (8th

ed 2004).

In Tokarski, 313 Or App at 25, we determined that

“defendants’ decision to use reserve funds to fund litiga-

tion was in furtherance of their right to petition.” Although

that right is often associated with filing litigation, it encom-

passes a broader swath of conduct. See Clackamas County

Oregon v. Clackamas River Water, 280 Or App 366, 370, 382

P3d 598 (2016), rev den, 360 Or 752 (2017) (“[A] person who

petitions the government for redress, including by filing liti-

gation, generally cannot be held liable for damages for their

petitioning conduct[.]” (Emphasis added.)).

Here, when M. A. made her report to the police,

based on advice provided by Faber, she was requesting

assistance from the state regarding a perceived violation of

a FAPA restraining order. Plaintiff’s claims against M. A.

DeHart v. Tofte, 326 Or App 720, 742, 533 P3d 829 (2023).

8

Article I, section 8, provides: “No law shall be passed restraining the free

expression of opinion, or restricting the right to speak, write, or print freely on

any subject whatever; but every person shall be responsible for the abuse of this

right.” Article I, section 26, provides: “No law shall be passed restraining any of

the inhabitants of the State from assembling together in a peaceable manner to

consult for their common good; nor from instructing their Representatives; nor

from applying to the Legislature for redress of greviances (sic).”

Cite as 327 Or App 763 (2023) 773

and Faber for false arrest, false imprisonment, malicious

prosecution, and abuse of process, arise out of that specific

conduct. See Deep Photonics Corp. v. LaChapelle, 282 Or App

533, 546, 385 P3d 1126 (2016), rev den, 361 Or 524 (2017)

(“To ‘arise out of’ the conduct * * * the act underlying the

claim itself must have been an act in furtherance of the

right to petition and not just associated with it.”). Thus, the

“arise out of” requirement is satisfied.

But the question remains whether that conduct

could be considered petitioning activity in connection with

a public issue or an issue of public interest. When consid-

ering the related question of whether a statement involves

a matter of public concern, the Supreme Court has focused

on the statement’s content, form, and context. Neumann v.

Liles, 358 Or 706, 720, 369 P3d 1117 (2016) (Neuman I). In

Neumann I, we determined that an online review of a wed-

ding venue was a matter of public concern because it was

“posted on a publicly accessible website, and the content of

* * * [the] review related to matters of general interest to the

public, particularly those members of the public who are in

the market for a wedding venue.” Id. On remand from the

Supreme Court, we concluded that the same online review

qualified as a matter of public interest under the anti-

SLAPP statute. Neumann v. Liles, 295 Or App 340, 345, 434

P3d 438 (2018), rev den, 365 Or 195 (2019) (Neumann II).

Likewise, in Mullen v. Meredith Corp., 271 Or App 698, 707,

353 P3d 598 (2015), we determined that a news report of a

shooting was an issue of public interest. And in Plotkin, 280

Or App at 822, we determined that “a comment defendant

allegedly made about the professional conduct of the leader

of a public corporation” was a matter of public interest.

Here, focusing on the content, form, and context of

the speech, we conclude that M. A.’s report to the police con-

cerned an issue of public interest. With respect to its con-

tent, the speech was about a perceived violation of a FAPA

restraining order. “[T]he essence of [FAPA] is to prevent

acts of family violence through restraining orders and, if

the court orders are disobeyed, to provide legal sanctions

for the violations of the orders[.]” A. M. B. v. Bachman, 171

Or App 665, 673, 16 P.3d 1185 (2000), rev den, 332 Or 305

774 Mouktabis v. Clackamas County Assessor

(2001) (internal quotation marks omitted). Certainly, pre-

venting acts of family violence is a matter of public interest.

Likewise, the public has an interest in whether court orders

are being ignored or violated. Regarding the form and con-

text of the speech, M. A., based on the advice of her attorney,

reported the perceived FAPA violation to the police, thereby

seeking the assistance of the state, and her report resulted in

plaintiff’s arrest and prosecution. Because M. A. sought the

state’s help in enforcing the terms of her restraining order,

the form and context of the speech confirms that it was in

connection with a public issue or an issue of public interest.9

Furthermore, our conclusion that plaintiff’s claims

against M. A. and Faber arise from protected conduct fur-

thers a central goal of the anti-SLAPP statute, which is to

encourage citizens to engage with and participate in gov-

ernment. As explained in a committee hearing prior to the

statute’s enactment, “[i]t is important that we encourage

citizens—that is what this is about—this is encouraging

citizens to engage in their state government. * * * These

Strategic Lawsuits Against Public Participation poison

the mind of the average citizen and make them afraid of

their own government.” Tape Recording, House Judiciary

Committee, Subcommittee on Civil Law, HB 2460, Mar 19,

2001, Tape 41, Side A (statement of Rep Kurt Schrader). We

agree with the trial court that reports of perceived viola-

tions of FAPA restraining orders must be considered mat-

ters of public interest to avoid the risk of subjecting victims

of domestic abuse to the fear of civil liability for reporting

what they perceive to be violations of those orders. The trial

court did not err when it determined that plaintiff’s claims

arose out of protected conduct.10

9

Plaintiff argues that the police report was not a matter of public interest

because it “concern[ed] only the protected party and the restrained party.” But

challenged speech may reasonably be understood to implicate a public issue or an

issue of public interest, even if it centers on a private dispute.

10

Oregon’s anti-SLAPP statute was modeled on California’s, and, as a result,

when construing our anti-SLAPP statute, California cases decided after 2001

may be cited for their persuasive value. Handy v. Lane County, 360 Or 605, 623,

n 12, 385 P3d 1016 (2016); Page v. Parsons, 249 Or App 445, 461, 277 P3d 609

(2012). In Kenne v. Stennis, 230 Cal App 4th 953, 966, 179 Cal Rptr 3d 953 (2014),

the California Court of Appeal determined that “the making of allegedly false

police reports * * * can be protected petitioning activity under the first prong of

the anti-SLAPP statute if the falsity of the report is controverted.”

Cite as 327 Or App 763 (2023) 775

2. Plaintiff fails to show a probability of prevailing on

his claims.

We turn to plaintiff’s second assignment of error

and consider whether plaintiff met his burden to establish

a probability of prevailing on his claims against defendants

by presenting substantial evidence to support a prima facie

case. ORS 31.150(3). “[T]he statutory text indicates that the

presentation of substantial evidence to support a prima facie

case is, in and of itself, sufficient to establish a probability

that the plaintiff will prevail; whether or not it is ‘likely’

that the plaintiff will prevail is irrelevant in determining

whether it has met the burden of proof set forth by ORS

31.150(3).” Young, 259 Or App at 508 (emphasis in origi-

nal). When considering whether a plaintiff has presented

substantial evidence to support a prima facie case, we do

not weigh the defendant’s evidence against the plaintiff’s;

instead, “under the second step of the burden-shifting

analysis the court may consider defendant’s evidence only

insofar as necessary to determine whether it defeats plain-

tiff’s claim as a matter of law.” Id. at 509.

Plaintiff asserted claims against defendants for

false arrest, false imprisonment, malicious prosecution,

and abuse of process. “The torts of false arrest and false

imprisonment have the same four elements: (1) defendant

must confine plaintiff; (2) defendant must intend the act

that causes the confinement; (3) plaintiff must be aware of

the confinement; and (4) the confinement must be unlaw-

ful.” Fossen v. Clackamas County, 271 Or App 842, 847, 352

P3d 1288 (2015). The existence of probable cause “render[s]

an arrest lawful as a matter of law.” Miller v. Columbia

County, 282 Or App 348, 355, 385 P3d 1214 (2016), rev den,

361 Or 238 (2017). “[A]n officer has probable cause to make

an arrest if: (1) the officer subjectively believes that a crime

has been committed; and (2) the officer’s subjective belief is

objectively reasonable under the circumstances.” Id. at 357.

Here, plaintiff provides no evidence that his arrest

and confinement were unlawful. Plaintiff relies on evidence

and testimony from the contempt proceeding that was filed

against him based on M. A.’s report. As plaintiff points out,

he was acquitted of that charge, but that does not equate

776 Mouktabis v. Clackamas County Assessor

to a showing that he was unlawfully confined. During that

proceeding, plaintiff argued that he had inadvertently sent

a WhatsApp message to his former wife. Relying on State

v. Nicholson, 282 Or App 51, 62, 383 P3d 977 (2016), plain-

tiff argued that the state was required to prove that his

alleged violation of the FAPA restraining order was willful,

or, in other words, that it was intentional and performed

with knowledge that the act was forbidden. By granting the

motion for acquittal, it is reasonable to infer that the trial

court concluded that the state failed to meet its burden of

proving beyond a reasonable doubt that plaintiff’s violation

of the restraining order was willful or intentional.

At the same time, at the hearing on the violation of

the restraining order, plaintiff’s former wife testified that

she received a message from plaintiff’s telephone number,

and an officer from OCPD testified that, when he questioned

plaintiff, the officer was focused on whether that telephone

number was plaintiff’s, and whether plaintiff had made con-

tact with his former wife. Plaintiff admitted to the officer

that the number belonged to him, but he denied sending

M. A. a text message. When shown the message that M. A.

received, plaintiff was able to translate it as “Peace be upon

you,” or “Hello.”

The evidence is thus insufficient to make a prima

facie case that the officer lacked probable cause to arrest

plaintiff, even if it later was determined in a legal proceed-

ing that the WhatsApp message was sent unintentionally.

See Miller, 282 Or App at 358 (“An officer is not required—

through further investigation or otherwise—to eliminate

all possible lawful explanations for conduct that reasonably

appears to violate the law.” (Internal quotation marks omit-

ted.)). Because there was probable cause to arrest plaintiff,

he cannot make a prima facie showing that his arrest and

confinement were unlawful.11 Accordingly, plaintiff failed to

11

Plaintiff alleged that, in January 2020, M. A. reported to WLPD that

plaintiff had weapons in his possession, and plaintiff alleged that police detained

him and searched him for weapons, but he was not arrested or charged. We reject

without further discussion plaintiff’s suggestion that those allegations were suf-

ficient to support a prima facie case of false arrest. See ORS 133.005 (a stop is not

an arrest.).

Cite as 327 Or App 763 (2023) 777

present substantial evidence to support a prima facie case

against defendants for false arrest and false imprisonment.

Turning then to Plaintiff’s claim of malicious pros-

ecution, he was required to provide evidence establishing

a prima facie case of the following elements: “(1) the insti-

tution or continuation of criminal proceedings; (2) by or at

the insistence of the defendant; (3) termination of such pro-

ceedings in the plaintiff’s favor; (4) malice in instituting the

proceedings; (5) lack of probable cause for the proceedings;

and (6) injury or damage as a result.” Miller, 282 Or App

at 360 (footnote omitted). “[T]he existence of probable cause

is a complete defense to a claim for malicious prosecution.”

Hartley v. Water Resources Dept., 77 Or App 517, 520, 713

P2d 1060, rev den, 301 Or 78 (1986).

Although related to malicious prosecution, abuse of

process is a distinct tort. An abuse of process can occur even

when a legal procedure is commenced with probable cause.

Kelly v. McBarron, 258 Or 149, 154, 482 P2d 187 (1971). “[T]o

prevail on an abuse of process claim, a plaintiff must prove

some ulterior purpose, unrelated to the process, and a willful

act in the use of the process that is not proper in the regular

conduct of the proceeding.” Singh v. McLaughlin, 255 Or App

340, 355, 297 P3d 514 (2013). Showing an ulterior purpose

generally requires “coercion to obtain a collateral advan-

tage not associated with the process, such as the surrender

of property or the payment of money.” Hartley, 77 Or App

at 522.

Once again, viewing the evidence in the light most

favorable to plaintiff in relation to his claims for malicious

prosecution and abuse of process, he did not present suf-

ficient evidence to establish a probability that the officer

lacked probable cause, or of malice or ulterior purpose. For

a malicious prosecution claim, malice is “defined as any

primary purpose other than to bring a person to justice.”

Singh, 255 Or App at 353 (internal quotation marks omit-

ted). “Evidence that a defendant initiated an arrest with-

out probable cause is, standing alone, generally sufficient to

give rise to an inference of malice.” Id. at 354.

Here, as already explained, even looking at the

evidence in the light most favorable to plaintiff, there was

778 Mouktabis v. Clackamas County Assessor

probable cause to arrest him because he made contact with

his former wife by telephone, even if it was later determined

in a legal proceeding not to have been intentional. In argu-

ing that he met his burden of production regarding malice

and ulterior purpose, plaintiff points to the declarations that

he filed in opposition to the special motions to strike, but

many of plaintiff’s statements in those declarations do not

concern his May 2019 arrest, most of plaintiff’s statements

are inadmissible, and plaintiff merely speculates regard-

ing the intentions and purposes of his former wife and her

attorney. Plaintiff relies on the history of his contentious

legal disputes with his former wife, but, because there was

probable cause to arrest plaintiff regarding a perceived vio-

lation of a FAPA restraining order, we cannot reasonably

infer from the circumstances that his former wife and her

attorney acted with malice or an ulterior purpose. See State

v. Bivins, 191 Or App 460, 468, 83 P3d 379 (2004) (evidence

is “insufficient to support an inference when the conclusion

to be drawn from it requires too great an inferential leap—

that is, when the logic is too strained.” (Internal quotation

marks omitted.)). We conclude that plaintiff failed to meet

his burden of production regarding evidence of lack of prob-

able cause, malice, or ulterior purpose. See Page v. Parsons,

249 Or App 445, 447, 277 P3d 609 (2012) (affirming grant of

anti-SLAPP motion on a claim for abuse of process); see also

Mohabeer v. Farmers Ins. Exchange, 318 Or App 313, 320,

508 P3d 37, rev den, 370 Or 212 (2022) (trial court erred in

denying anti-SLAPP motion because plaintiff had “not met

his burden to present prima facie evidence of a lack of prob-

able cause.”).

We recognize that it will often be difficult for a

plaintiff to produce admissible evidence of malice or ulte-

rior purpose, particularly during the early stages of litiga-

tion. Nevertheless, “[i]n the context of the special motion to

strike, * * * the existence of prima facie proof of the elements

of the claim being challenged by the motion is something

that the court determines as a matter of law, based on the

pleadings and supporting and opposing affidavits stat-

ing the facts upon which the liability or defense is based.”

Mohabeer, 318 Or App at 318-19 (internal quotation marks

omitted). Moreover, plaintiff could have sought specific,

Cite as 327 Or App 763 (2023) 779

limited discovery to bolster his allegations of malice and

ulterior purpose. See ORS 31.152(2) (although the filing of

a special motion to strike stays discovery, “[t]he court, on

motion and for good cause shown, may order that specified

discovery be conducted notwithstanding the stay imposed

by this subsection.”) Here, having reviewed the pleadings

and the evidence submitted, we conclude that the trial court

did not err when it granted the special motions to strike and

dismissed the claims against defendants.12

C. Attorney Fees and Prevailing Party Fees

In his third assignment of error, plaintiff argues

that the trial court erred in its determination awarding

attorney fees and prevailing party fees to defendants. Under

ORS 31.152(3), an award of attorney fees and costs to a

defendant who prevails on an anti-SLAPP motion is manda-

tory. “In determining a reasonable attorney fee award under

ORS 31.152(3), the trial court must consider factors enumer-

ated in ORS 20.075.” Robinson v. DeFazio, 284 Or App 98,

103, 392 P3d 781, adh’d to as modified on recons, 286 Or App

709, 399 P3d 1095, rev den, 362 Or 175 (2017). We review a

trial court’s decision regarding the amount of attorney fees

for an abuse of discretion. Id. Separately, based on its con-

sideration of enumerated factors, a trial court “may award

to the prevailing party up to an additional $5,000 as a pre-

vailing party fee.” ORS 20.190(3).

Plaintiff requests de novo review of the trial court’s

factual findings regarding the amount of attorney fees.

12

Faber also argues that plaintiff’s claims against her are barred by the liti-

gation privilege. Plaintiff alleged that M. A. contacted the police based on advice

provided by Faber, so it is reasonable to construe Faber’s statements or conduct as

part of the petitioning activity protected by the anti-SLAPP statute. As a result,

we need not consider the scope and applicability of the litigation privilege. See

Mantia v. Hanson, 190 Or App 412, 417-18, 79 P3d 404 (2003) (litigation privilege

provides immunity for conduct and statements made in connection with judicial

proceedings, but there is an exception for “wrongful initiation” actions); see also

Reynolds v. Schrock, 341 Or 338, 350, 142 P3d 1062 (2006) (holding that “a lawyer

acting on behalf of a client and within the scope of the lawyer-client relationship

is protected by such a privilege and is not liable for assisting the client in conduct

that breaches the client’s fiduciary duty to a third party.”). In another appeal filed

by plaintiff, we reversed the trial court’s grant of summary judgment in favor of

his former wife because there were genuine issues of material fact as to whether

M. A.’s statements were made in a privileged context. Mouktabis v. M. A., 315 Or

App 22, 25, 500 P3d 32 (2021).

780 Mouktabis v. Clackamas County Assessor

When we have discretion to exercise de novo review, we do so

only in exceptional cases. ORAP 5.40(8)(c). We have discre-

tion to review equitable actions de novo. ORS 19.415(3)(b).

But here, plaintiff seeks money damages, not equitable

relief, so de novo review is not available. See Ben Rybke Co.

v. Royal Globe Insurance Co., 293 Or 513, 520, 651 P2d 138

(1982) (action at law for the payment of money allegedly owed

under an insurance policy was not an equitable action sub-

ject to de novo review). Instead, we review the trial court’s

decision regarding the amount of attorney fees for an abuse

of discretion. Robinson, 284 Or App at 103. Nevertheless,

“the terms on which the trial court exercised its discretion

must be legally permissible.” Id. (Internal quotation marks

omitted.)

Here, in awarding attorney fees under ORS

31.152(3), the trial court stated in its orders that it did not

“consider the ORS 20.075(1) factors except as to whether to

award an enhanced prevailing party fee.” The factors in

ORS 20.075(1) concern whether to award fees, and, because

an award of attorney fees to defendants was mandatory

under ORS 31.152(3), the trial court concluded that it was

not required to consider those factors. See ORS 20.075(1)

(“A court shall consider the following factors in determin-

ing whether to award attorney fees in any case in which an

award of attorney fees is authorized by statute and in which

the court has discretion to decide whether to award attorney

fees[.]”) (Emphasis added.)13

Plaintiff argues that the trial court erred by fail-

ing to consider the subsection (1) factors when determining

the amount of attorney fees. On that point, we agree with

plaintiff because ORS 20.075(2) expressly provides that

“[a] court shall consider the factors specified in subsection

(1) of this section in determining the amount of an award of

attorney fees in any case in which an award of attorney fees

is authorized or required by statute.” (Emphasis added.) This

is a case in which attorney fees are required by statute and

the trial court erred by failing to consider the subsection (1)

13

ORS 20.075 was amended in 2023. See Or Laws 2023, ch 72, § 32. Those

amendments do not affect our analysis and we refer to the current version of the

statute.

Cite as 327 Or App 763 (2023) 781

factors. See Jones v. Nava, 264 Or App 235, 244, 331 P3d

1067 (2014) (even when an award of attorney fees is required

by statute, “in determining the amount of attorney fees to

be awarded, the court was obligated to consider the relevant

factors in both subsection (1) and (2) of ORS 20.075.”).

We cannot say that the error was harmless because

the trial court’s consideration of the subsection (1) factors

could have had an impact on its decision regarding the

amount of fees. For example, under ORS 20.075(1)(g), the

trial court is required to consider the amount awarded as a

prevailing party fee under ORS 20.190, suggesting that the

trial court’s decision to award an enhanced prevailing party

fee could have had an impact on the amount of anti-SLAPP

attorney fees awarded. But the trial court never engaged in

considerations of that nature because it expressly did not

consider the ORS 20.075(1) factors when determining the

amount of reasonable attorney fees under ORS 31.152(3).

We therefore vacate the supplemental money judgments and

remand for the trial court to take into account both the ORS

20.075(1) factors and the ORS 20.075(2) factors when deter-

mining the amount of anti-SLAPP attorney fees to award to

defendants. On remand, of course, an award of reasonable

attorney fees and costs to defendants is mandatory. See ORS

31.152(3).

Given our decision to vacate and remand, we need

not address many of plaintiff’s appellate challenges to the

amount of attorney fees awarded. However, because the

issue will likely arise again on remand, we note that the

trial court erred when it entered two separate supplemental

money judgments awarding an enhanced prevailing party

fee of $5,000 to both M. A. and Faber, for a total of $10,000.

The statutory maximum for a prevailing party fee against

plaintiff is $5,000. ORS 20.190(3). “A court may not award

* * * more than one prevailing party fee against a nonprevail-

ing party regardless of the number of parties in the action[.]”

ORS 20.190(4). As a result, the trial court should not have

awarded an enhanced prevailing party fee of $5,000 to each

defendant. However, a trial court may split the prevailing

party fee between defendants up to the statutory maximum

782 Mouktabis v. Clackamas County Assessor

of $5,000. Seida v. West Linn-Wilsonville School District 3 J

T, 169 Or App 418, 428, 9 P3d 150 (2000).

Motion to dismiss denied; motion for sanctions

denied; motions for ORS 19.360 review denied; supplemen-

tal money judgments vacated and remanded; otherwise

affirmed.