United States District Court, D. Oregon, Portland Division
Hamlet Wall Frank Wall, LLC Attorney for Plaintiff
A. Ernst Ashlee Marie Aguiar Timothy M. Cunningham Davis
Wright Tremaine, LLP Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Susan Garren brings six claims for relief against Defendants
American Management Services Northwest LLC and Phoenix
Commercial Investments LLC. These claims arise under Oregon
common law and the Oregon Residential Landlord and Tenant Act
(ORLTA), and include: (1) failure to maintain premises in a
habitable condition in violation of Oregon Revised Statute
§ (“O.R.S.”) 90.320; (2) wrongfully
disposing of abandoned property in violation of O.R.S.
90.425; (3) trespass to chattel; (4) conversion; (5)
operating a business with an assumed business name in
violation of O.R.S. 648.007; and (6) negligence. Before the
Court is Defendants' motion for partial summary judgment.
For the reasons that follow, Defendants' motion is
granted in part and denied in part.
April of 2017, Plaintiff was living in an apartment owned and
managed by Defendants. Crown Decl. Ex. 1, ECF 20. After
Plaintiff discovered a leak in the apartment, Defendants
opened the attic space for inspection. Answer ¶ 6, ECF
the attic was opened for inspection, Plaintiff suffered an
asthma attack and was advised to vacate the apartment.
Cunningham Decl. Ex. 3 at 14:11-19, ECF 19. On April 7,
2017-the day after the attic was opened-Plaintiff moved some
of her belongings from the apartment. Cunningham Decl. Ex. 6
at 7. On April 13th, Plaintiff informed Defendants that she
would quit the tenancy and remove her remaining belongings by
April 22nd. Cunningham Decl. Ex. 5. Over the next week and a
half, Plaintiff visited the apartment to take pictures, pack,
and remove additional items. Id. at 3-6. Each time
she entered the apartment, she felt ill. Id. at 14.
On April 21st, Plaintiff told the property manager she would
not remove her remaining belongings by the 22nd, as
originally promised, because she “was advised not to go
in [to the apartment] nor should anyone else  be put at
risk.” Cunningham Decl. Ex. 7. However, she maintained
that she was “not abandoning her property.”
Id. She also posted a notice to this effect on the
apartment door and emailed a copy to the property manager.
Cunningham Decl. Ex. 6 at 9. Plaintiff also asked that
Defendants provide her with the results of an air quality
test. Crown Decl. Ex. 2 at 1-4.
2nd, Plaintiff hired Mold Testing Services of Oregon (MTSO)
to assess the apartment for mold growth. Wall Decl. Ex. 2 at
1, ECF 24. MTSO found “elevated levels of mold
spores” in the air and mold growth in the attic, but no
mold on Plaintiff's furniture. Id. The report
concluded that “based on the air samples which indicate
elevated levels of mold spores, professional cleaning of the
contents [wa]s recommended.” Id. at 6. The
report also recommended that, “[b]ased on the lab
results, the findings during the visual inspection, and the
disruptive nature of the anticipated repairs, ” the
unit should be vacated. Id.
June, Defendants' employees examined the apartment and
determined that Plaintiff's remaining belongings were
worth less than $1000 total. Cunningham Decl. Ex. 8. On June
7th, Defendants posted an abandoned property notice to the
apartment door. Cunningham Decl. Ex. 14 at 2. On June 8th,
Plaintiff responded to the notice by emailing Defendants and
requesting a “clearance report” before she
removed her property. Cunningham Decl. Ex. 10. Plaintiff
claims the moving company she hired, ServPro, required this
report. Cunningham Decl. Ex. 1 (“Garren Dep.”) at
114-15. Defendants did not provide Plaintiff with the
requested report. Plaintiff then hired Mold Investigations to
re-inspect the apartment, as well as her new apartment and
the clothing and furniture she had brought with her.
Cunningham Decl. Ex. 11.
7th, Defendants emailed Plaintiff with a “courtesy
notice” and warned that if her property was not
retrieved the following Monday, July 10th, it would be
destroyed. Garren Dep. at 189. On July 10th, Mold
Investigations reported finding no evidence of mold
contamination in either apartment. Cunningham Decl. Ex. 11.
On July 18th and July 19th, Plaintiff's attorney emailed
Defendants and requested that movers be given access to the
apartment in order to retrieve Plaintiff's remaining
belongings. Garren Dep. at 183-87. Defendants did not respond
to these emails. Id. at 186. On July 20th and 21st,
Plaintiff saw, through a window, that her property was still
in the apartment. Id. at 193. On July 22nd,
Defendants advised, vial email, that they had disposed of the
remaining property. Id. at 198. On July 25th,
Plaintiff returned to the apartment and confirmed that all
her belongings were gone. Id. at 192-93.
judgment is appropriate when there is no genuine issue
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). “An issue of
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the non-moving
party.” Reed v. Lieurance, 863 F.3d 1196, 1204
(9th Cir. 2017) (quoting Cortez v. Skol, 776 F.3d
1046, 1050 (9th Cir. 2015)).
moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this
initial burden, a moving party without the burden of proof at
trial need only point to the absence of evidence supporting
the nonmoving party's claim. Id. at 325. Once
that initial burden is satisfied, the burden then shifts to
the nonmoving party to demonstrate that there remains a
genuine issue of material fact to be tried. Id. at
323. A nonmoving party with the burden of proof at trial must
move beyond mere allegations and set forth affidavits,
declarations, motions, or other evidentiary materials from
the record to establish the essential elements of its claim.
Id. at 324.
reasonable doubts as to the existence of a genuine issue of
material fact must be resolved in the nonmoving party's
favor. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “Summary judgment
is improper where divergent ultimate inferences may
reasonably be drawn from the undisputed facts.”
Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771
F.3d 1119, 1125 (9th Cir. 2014) (internal quotation marks
omitted); see also Int'l Union of
Bricklayers & Allied Craftsman Local Union No. 20,
AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th
Cir. 1985) (“Even where the basic facts are stipulated,
if the parties dispute what inferences should be drawn from
them, summary judgment is improper.”).
move for partial summary judgment on two issues, arguing that
(1) Plaintiff legally abandoned her property under O.R.S.
90.425, and (2) Plaintiff is not entitled to emotional
distress damages based on the destruction of her personal
Legally Abandoned Property
90.425 dictates when and how landlords may sell or dispose of
a former tenant's personal property when that property
has been left on the premises. Before “storing,
selling, or disposing of the tenant's personal property,
” a landlord must provide statutorily adequate notice.
O.R.S. 90.425(3). Once a landlord provides this notice,
if the tenant . . . does not respond within the time provided
. . . [or] does not remove the personal property within the
time required by subsection (8) of this section or by any
date agreed to with the landlord, whichever is later, the
tenant's . . . personal property is conclusively presumed
to be abandoned. The tenant . . . shall . . . have no further