Dep't. of Human Services v. Lindsey

The Court explained that in determining the protected activity under the Anti-SLAPP statute, the court must engage in a two-step burden shifting process. 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 subsection (2) of the statute. Second, if the defendant meets its burden, 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. Young v. Davis, 314 P3d 350 (2013).

Department of Human Services (DHS) brought suit against Stewart seeking contribution for its liability in a negligence suit brought by Stewart's daughter, Z. The suit was related to DHS's failure to protect Z from abuse that occurred while she was a ward of the state.  DHS argued that Stewart bore a share of responsibility for the abuse due to her own failure to protect her child. In response, Stewart filed a motion to strike, claiming that DHS's lawsuit was a Strategic Lawsuit Against Public Participation (SLAPP) and thus arose out of activity protected by the SLAPP statute. The trial court granted the motion to strike. On appeal, DHS argued that the trial court erred in granting the motion to strike, and that the suit did not arise out of protected activity and was not subject to dismissal under the anti-SLAPP statute. The Court explained that in determining the protected activity under the Anti-SLAPP statute, the court must engage in a two-step burden shifting process. 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 subsection (2) of the statute. Second, if the defendant meets its burden, 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.  Young v. Davis, 314 P3d 350 (2013). In this case, the Court found that Stewart did not meet her burden of demonstrating that DHS's claim against her arose out of any activity that is subject to the anti-SLAPP statute because Stewart's negligence in supervising Z and those with whom she came in contact were not actions that are protected under the statute. Reversed and remanded.