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Garren v. American Management Services Northwest LLC

United States District Court, D. Oregon, Portland Division

December 6, 2019

SUSAN GARREN, Plaintiff,

          Frank Hamlet Wall Frank Wall, LLC Attorney for Plaintiff

          David A. Ernst Ashlee Marie Aguiar Timothy M. Cunningham Davis Wright Tremaine, LLP Attorneys for Defendant

          OPINION & ORDER


         Plaintiff 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.


         In 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 8.

         When 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.

         On May 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.

         In 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.

         On July 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.


         Summary 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)).

         The 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.

         All 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.”).


         Defendants 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 property.

         I. Legally Abandoned Property

         O.R.S. 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 ...

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