9th Circuit Court of Appeals (7 summaries)
M. F. v. Baker
Under ORS 30.866, "if the contact in question amounts to communication by speech or writing, only a threat will be sufficient to ‘cause apprehension or fear resulting from the perception of danger,’ as ORS 163.730 requires.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999).
Area(s) of Law:- Civil Stalking Protective Order
Preble v. Centennial School Dist., No. 287
"Where a worker offers evidence that work was the major contributing cause of a combined condition, but the ALJ or board finds that evidence less persuasive than the employer’s contrary evidence, the worker has 'failed to establish that a work-related incident was the major contributing cause of the worker’s injury' such that the worker may pursue a civil action under the limitations set out in ORS 656.019." Preble v. Centennial School Dist., No. 287.
Area(s) of Law:- Workers Compensation
Jane Doe v. USDC-NVL
Pursuant to 18 U.S.C. § 3663(a)(3), when a defendant agrees to pay restitution as part of a plea agreement the district court has statutory authority to award restitution. United States v. McAninch, 994 F.2d 1380, 1384 n.4 (9th Cir. 1993); United States v. Soderling, 970 F.2d 529, 534 n.9 (9th Cir. 1992) (per curiam).
Area(s) of Law:- Remedies
Guzman v. Polaris Industries
Under Somner v. Premier Nutrition Corp., 971 F.3d 834, 837 (9th Cir. 2020), a plaintiff may only seek an equitable remedy under the UCL and CLRA if they lack an adequate legal remedy.
Area(s) of Law:- Civil Procedure
In Re Hawkeye Entertainment
“Under 11 U.S.C. § 365(b)(1), a debtor-in-possession may assume a lease only if it cures the default (or provides adequate assurances that it will), provides compensation for any actual pecuniary loss resulting from the default (or provides adequate assurances that it will) and provides adequate assurances of future performance under the lease.”
Area(s) of Law:- Bankruptcy Law
Pinkert v. Schwab Charitable Fund
“An injury that has not yet materialized but will occur in the future can be a basis for Article III standing, but the injury must be ‘imminent,’ meaning that it must be ‘certainly impending.’” Clapper v. Amnesty Int’l, 568 U.S. 398, 409 (2013).
Area(s) of Law:- Standing
MacIntyre v. Carroll College
“Retaliation against a person because that person has complained of sex discrimination is [a] form of intentional sex discrimination encompassed by Title IX’s private cause of action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). “[A] plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation…” Id. (citing Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003)). “[T]o make out a prima facie case, a plaintiff need only make a minimal threshold showing of retaliation.” Id.
Area(s) of Law:- Employment Law
Oregon Supreme Court (4 summaries)
State v. Turay
A warrant for digital data meets the particularity requirement in the Oregon Constitution when it “describe[s] the information the state seeks…with as much specificity as reasonably possible under the circumstances” and does “not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.” State v. Mansor, 363 Or 185, 222, 212, 421 P3d 323 (2018). When a defendant “establish[es] a minimal factual nexus between [a constitutional violation] and the challenged evidence” there is a presumption that the challenged evidence be suppressed, which can be rebutted only by establishing “that the challenged evidence was untainted by” the violation. State v. DeJong, 368 Or 640, 642, 497 P3d 710 (2021).
Area(s) of Law:- Criminal Procedure
State v. Haley
Under ORS 164.205(1), a “separate unit” is determined by its structure, occupancy, function, layout, and appearance within a building.
Area(s) of Law:- Criminal Law
Johnson v. SAIF
ORS 656.214(1)(a) defines “impairment” as “the loss of use or function of a body part or system due to the compensable industrial injury.” ORS 656.214(1)(a).
Area(s) of Law:- Workers Compensation
State v. Kyger
“Attempted aggravated murder involving the circumstance set out in ORS 163.095(1)(d) requires that the Defendant (1) intentionally; (2) caused the death of another human being; (3) when there was more than one murder victim in the same criminal episode”; and as set out in ORS 161.405 requires (4) “that an actor have “intentionally” engaged in “conduct” that constitutes a “substantial step” toward the commission of the crime.” State v. Kyger, 369 Or 363, 369, 375.
Area(s) of Law:- Criminal Law
Oregon Court of Appeals (40 summaries)
Shepard Investment Group LLC v. Ormandy
When a landlord violates procedural conditions to utilize pass-through billing, a tenant may recover “an amount equal to one month’s periodic rent or twice the amount wrongfully charged to the tenant, whichever is greater.” ORS 90.315(4)(f).
Area(s) of Law:- Landlord Tenant
Service Employees Int’l Union Local 503 v. U of O
To determine whether “the duty to provide an exclusive representative with requested information that has some probable or potential relevance to a grievance or other contractual matter” has been fulfilled under The Public Employee Collective Bargaining Act (PECBA), the Employment Relations Board must decide whether the nature and content of the information, under the totality of the circumstances, requires the disclosure. Service Employees Int’l Union Local 503 v. U of O, 312 Or App 377, 380-81, 494 P3d 993 (2021).
Hoover v. Industrial Scrap Corp.
A party need not prevail on all assignments of error in order to be a prevailing party.
Area(s) of Law:- Attorney Fees
Clark v. Eddie Bauer LLC
When consumers purchase a product based on a retailer's misrepresentations of price history or comparative prices, an ascertainable loss may occur under the meaning of the Unlawful Trade Practices Act. ORS 646.638(1).
State v. Gonzalez
To determine whether sentencing is proportional, courts examine “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009).
Area(s) of Law:- Sentencing
Andlovec v. Spoto
“[F]or purposes of ORS 20.105(1), a claim, defense, or ground for appeal or review is meritless when it is entirely devoid of legal or factual support at the time it was made.” Mattiza v. Foster, 311 Or 1, 8, 803 P2d 723 (1990) (footnotes omitted).
Area(s) of Law:- Attorney Fees
State v. D.B.O.
ORS 163.415 provides that a person commits third-degree sexual abuse when they have sexual contact with someone who does not consent with the purpose of sexual arousal. “It is necessary for the state to establish a purpose of sexual arousal [beyond a reasonable doubt] in order to complete proof of the crime.” State v. Fitch, 47 Or App 205, 208, 613 P2d 1108 (1980).
Area(s) of Law:- Juvenile Law
State v. Miles
Asportation can only be shown “when the defendant changes the position of the victim such that, as a matter of situation and context, the victim’s ending place is qualitatively different from the victim’s starting place,” State v. Sierra, 349 Or 506, 513, 254 P3d 149 (2010), adh’d to as modified on recons, 349 Or 604, 249 P3d 759 (2011), however, that movement “must not be ‘only “incidental”’ to another crime.” Id. at 514.
Area(s) of Law:- Criminal Law
Curry v. Highberger
Counsel is inadequate when a petitioner establishes by a preponderance of the evidence that “counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suf-fered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).
Area(s) of Law:- Post-Conviction Relief
State v. Parras
A statute restricting Second Amendment rights is only constitutional if consistent with the nation’s history of regulating firearms. New York Rifle & Pistol Assn. v. Bruen, 597 US ___, 142 S Ct 2111, 213 L Ed 2d 387 (2022).
Area(s) of Law:- Constitutional Law
Douglas County v. Fish and Wildlife Commission
OAR 635-600-6775(6)(b) explicitly allows the Oregon Fish and Wildlife Commission to start and end hatchery programs.
Area(s) of Law:- Administrative Law
Certain Underwriters v. TNA NA Manufacturing, Inc.
“When a contracting party seeks to immunize itself from liability for its own negligence, its intention to do so must be clearly and unequivocally expressed.” American Wholesale Products v. Allstate Ins. Co., 288 Or App 418, 423, 406 (2017). A contract that contains a “broad reference to ‘any liability’ suggests that the parties intended for the provision to limit ‘any liability’ regardless of whether that liability arose in tort or in contract.” Kaste v. Land O’Lakes Purina Feed, LLC, 284 Or App 233, 246 (2017) (quoting Northwest Pine Products v. Cummins Northwest, Inc., 126 Or App 219, 221 (1994)). Additionally, the “separation of the limitations-of-liability section from the warranty section suggests that the parties intended for the limitations to apply to claims beyond warranty claims.” Kaste, 284 Or App 246 (citing Northwest Pine Products, 126 Or App 221).
Area(s) of Law:- Contract Law
Coast 2 Coast Logistics v. Badger Auctioneers
Oregon subscribes to an objective theory of contracts. In ascertaining the meaning of a contract, the court examines the parties’ objective manifestations of intent, as evidenced by their communications and acts. Newton/Boldt v. Newton, 192 Or App 386, 392, rev den, 337 Or 84 (2004), cert den, 543 US 1173 (2005); Cryo-Tech, Inc. v. JKC Bend, LLC, 313 Or App 413, 428 (2021), rev den, 369 Or 211 (2022). When a party prevails in an action that encompasses both a claim for which attorney fees are authorized and a claim for which they are not authorized, the court generally must apportion the fees incurred for each claim. Greb v. Murray, 102 Or App 573, 576 (1990). However, fees need not be apportioned if the claims involve common legal issues. Id. In that situation, the prevailing party is entitled to fees reasonably incurred in association with the claims on which she prevailed, as well as fees incurred on the other claims “if the party entitled to fees would have incurred roughly the same amount of fees, irrespective of the additional claim or claims.” Perry v. Hernandez, 265 Or App 146, 149 (2014). “Ordinarily, a court awards attorney fees to a litigant only if a statute or contract authorizes such an award.” Swett v. Bradbury, 335 Or 378, 381 (2003).
Area(s) of Law:- Contract Law
Schaefer v. Marion County
“The presence of a transportation facility or improvement shall not be a basis for an exception to allow residential, commercial, institutional, or industrial development on rural lands under this division or OAR 660-004-0022 and 660-004-0028.” OAR 660-012-0060(5).
OAR 660-012-0060(5) applies to any exception under OAR 660-004-0022 (for the specified types of development on rural lands), not just a subset of possible exceptions under OAR 660-004-0022.
- Land Use
Northwest Public Communications Council v. Qwest
The FCC has made clear that “consistent with section 276 and the Commission’s Payphone Orders, states may, but are not required to, order refunds for any period after April 15, 1997, that a BOC does not have NST-compliant rates in effect.” Clarification Order at ¶ 47 (italics in original). Moreover, the PUC has broad regulatory authority consisting of “powers and duties.” ORS 756.040(1). Within these powers and duties, the PUC can order refunds to “correct legal errors that lead to ‘unjust and unreasonable exactions.’” Gearhart v. PUC, 356 Or 216, 244, 339 P3d 904 (2014) (Gearhart II) (quoting ORS 756.040(1) and ORS 756.062(2)).
Area(s) of Law:- Administrative Law
Kinzua Resources, LLC v. Dep't of Environmental Quality
ORS 459.268 states that “…under ORS 459.205 or, if the person who holds or last held the permit fails to comply with this section, the person owning or controlling the property on which the disposal site is located, shall close and maintain the site according to the requirements of this chapter….” (Emphasis added.) The Supreme Court defined “owning or controlling” as “possessing legal authority over the land which the landfill is located.” Kinzua Resources v. DEQ, 366 Or 674, 468 P3d 410 (2020) (Kinzua III).
Area(s) of Law:- Environmental Law
Martinez-Munoz v. Kendal Merchandising
Claim preclusion is subject to an exception when “the decision maker expressly reserves for a party the right to maintain a second action or proceeding at the time the first determination is made, there is no preclusive effect.” Drews v. EBI Cos., 310 Or 134, 141 (1990) (citing Restatement (Second) of Judgments § 20(1)(b) (1982)).
Area(s) of Law:- Workers Compensation
Cowles v. Flormoe-Cowles
If a court finds a party in remedial contempt it must be supported by a specific finding of willfulness. Southworth and Southworth, 113 Or App 607, 610 (1991), rev den, 314 Or 574 (1992).
Area(s) of Law:- Family Law
Lewis v. Varde
“On petition of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate under the agreement: (b) If the refusing party opposes the petition, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.”
ORS 36.625(1).
If the parties to an arbitration agreement have not determined a method for appointing an arbitrator, “the court, on the petition of a party to the arbitration proceeding, shall appoint the arbitrator.” ORS 36.645(1).
- Arbitration
State v. C.J.
Under ORS 426.130(1)(a)(C), the court “[m]ay order commitment of the person with mental illness to the Oregon Health Authority for treatment if” they find the person has a mental illness and institutional treatment is in their best interest. ORS 426.005(1)(f)(A) explains that “a person with mental illness” means a person who, because of a mental disorder, is dangerous to self or others.
Area(s) of Law:- Administrative Law
State v. Cuffy
To impeach by contradiction, it is necessary to state a precise fact statement to which the rebuttal evidence contradicts. State v. Hayes, 117 Or App 202, 205-06 (1992), rev den, 316 Or 528 (1993). The “state [is] entitled to introduce contradictory testimony [that] relate[s] to the circumstances of the crime.” State v. Gibson, 338 Or 560, 572 cert den, 546 US 1044 (2005).
Area(s) of Law:- Evidence
State v. Didlot
“[C]onfessions made by a defendant in custody that were induced by the influence of hope or fear, applied by a public officer having the prisoner in his charge, are inadmissible against the defendant.” State v. Jackson, 364 Or 1, 21 (2018) (internal quotation marks omitted). A defendant is induced if “the defendant has been told something that communicates the idea of a temporal benefit or disadvantage attached to confessing” State v. Pryor, 309 Or App 12, 19 (quoting State v. Chavez-Meza, 301 Or App 373, 387). Under State v. Center, a promise of help need not be tied to prosecutorial leniency; rather, a promise of some benefit, by itself, could suffice to improperly compel a confession. 314 Or App 813, 823 (2021).
Area(s) of Law:- Evidence
State v. Orman
Article I, Section 9, of the Oregon Constitution protects individuals’ rights against unreasonable searches or seizures. When an encounter advances from a conversation to the point of an investigatory stop, and thus a seizure of the individual, the stop must be accompanied by reasonable suspicion. State v. Backstrand, 354 Or 392, 399 (2013) (citing State v. Fair, 353 Or 588, 593-94 (2013)). Absent reasonable suspicion, a stop is unlawful, and all evidence discovered as a result of the unlawful police action is presumptively tainted by the violation and must be suppressed. State v. Newton, 286 Or App 274, 288 (2017).
Area(s) of Law:- Criminal Procedure
Urban Renewal Comm. of Oregon City v. Williams
“[T]he validity of local action depends, first, on whether it is authorized by the local charter or by a statute, or if taken by initiative, whether it qualifies as ‘local, special (or) municipal legislation’ under [A]rticle IV, section 1(5); second, on whether it contravenes state or federal law.” La Grande/Astoria v. PERB, 281 Or 137, 142, 284 Or 173 (1978). A new city charter amendment contravenes state law when the local rule is incompatible with the legislative policy. Id. If the local rule is incompatible with the legislative policy, the local rule is preempted.
Area(s) of Law:- Preemption
State v. Elbinger
“For the purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual’s liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted.” State v. Arreola-Botello, 365 Or 695, 701 (2019). If an officer does not have reasonable suspicion when a stop occurs, then the stop is unlawful, and all evidence discovered as a result of the unlawful police action is presumed tainted by the violation and must be suppressed. State v. Newton, 286 Or App 274, 288-89 (2017).
Area(s) of Law:- Criminal Procedure
Wang v. Board of Massage Therapists
(1) “A court lacks subject matter jurisdiction under the Uniform Declaratory Judgments Act if some other exclusive remedy exists to address the dispute” and “[w]hen the dispute at issue involves an agency’s action, or refusal to act, the review provisions of the APA provide the sole and exclusive means of obtaining judicial review, and an action for declaratory relief is not available.” Salibello v. Board of Optometry, 276 Or App 363, 367 (2016). (2) ORS 676.165(5) provides that “[i]nvestigatory information obtained by an investigator and the report issued by the investigator shall be exempt from public disclosure.” However, “[i]f a health professional regulatory board votes to issue a notice of intent to impose a disciplinary sanction, the board shall disclose to the licensee or applicant all information obtained by the board in the investigation of the allegations in the notice.” ORS 676.175(3).
Area(s) of Law:- Administrative Law
Dep't. of Human Servs. v. T. S. M.
Parties to dependency proceedings have a right to participate in hearings. See ORS 419B.875(2)(c). However, the juvenile court possesses the power “to provide for orderly conduct of proceedings before it * * *.” See ORS 1.010(3).
Area(s) of Law:- Juvenile Law
Floor Solutions, LLC v. Johnson
A “court shall vacate an award made in the arbitration proceeding if [a]n arbitrator exceeded the arbitrator’s powers[.]” ORS 36.705(1)(d). A court may not disturb an arbitration award if the issues that were arbitrated were within the scope of the parties’ agreement. Seller v. Salem Womens Clinic, Inc., 154 Or App 522, 527 (1998), rev den 328 Or 40 (1998).
Area(s) of Law:- Arbitration
Larsen v. Selmet, Inc.
ORCP 26 A allows a court to dismiss an action brought by someone other than the real party in interest without allowing substitution of the real party in interest. However, if the plaintiff made an honest and understandable mistake, the court may allow substitution.
Area(s) of Law:- Civil Procedure
State v. Hamilton
When an issue is not preserved at trial, review of that issue is limited to plain-error review where the error is considered “plain” if the legal point is obvious, not reasonably in dispute, and the error is apparent on the record without the court having to choose among competing inferences. See ORAP 5.45(1); State v. Vanornum, 354 Or 614, 629 (2013). A trial court has “discretionary authority to revoke probation” based on the “finding of a new crime or other violation of the conditions of probation.” State v. Kelemen, 296 Or App 184 (2019).
Area(s) of Law:- Criminal Law
Torres v. SAIF
An injury is compensable when it arises “out of and in the course of employment requiring medical services or resulting in disability or death” and “if the work is a material contributing cause of the injury.” ORS 656.005(7)(a); Coleman v. SAIF, 203 Or App 442, 446 (2005). “However, when an otherwise compensable injury combines with a preexisting condition to cause or prolong a disability or the need for treatment, the combined condition is compensable only if the otherwise compensable injury is the major contributing cause of the disability or need for treatment.” SAIF v. Harrison, 299 Or App 104, 106 (2019) (citing ORS 656.005(7)(a)(B)).
Area(s) of Law:- Workers Compensation
State v. Moala
A photograph illustrating nonverbal behavior intended to constitute an assertion—a "statement," OEC 801(1)(b)—that is intended to prove the truth of the claim in the statement is hearsay.
Area(s) of Law:- Evidence
Jaynes v. Cain
Under the Oregon Constitution, to be entitled to post-conviction relief based on a claim of inadequate assistance of counsel, “a petitioner must prove two elements: first, that trial counsel failed to exercise reasonable professional skill and judgment, and second, that the petitioner suffered prejudice as a result of counsel’s inadequacy.”
Area(s) of Law:- Criminal Law
State v. Buchnoff
Under ORS 162.205(1)(a), “a person commits the crime of failure to appear in the first degree if the person knowingly fails to appear as required after having by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge against the person of having committed a felony.”
Area(s) of Law:- Criminal Law
State v. Marks
ORS 161.067(1) provides, “When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.” See ORS 161.067(1).
Loss of reputation is considered “economic damages,” when the damages are objectively verifiable. See ORS 137.103(2); ORS 31.705(2)(a).
- Criminal Law
Taylor v. State Hospital
OAR 309-114-0010(1)(b)(C) authorizes “[i]nvoluntary administration of significant procedures with good cause.” OAR 309-114-0010(2)(a) provides that the Oregon State Hospital may consider a person incapable of consenting to significant procedures "only if the person currently demonstrates an inability to reasonably comprehend and weigh the risks and benefits of the proposed procedure…or no treatment at all.”
Area(s) of Law:- Administrative Law
R.S.R. v. Dept. of Human Services
In absence of physical injury, a party may recover emotional and psychological damages if they establish that they have a “special relationship” with the other party. See Lowe v. Philip Morris USA, Inc., 207 Or App 532, 551, 142 P3d 1079 (2006).
Area(s) of Law:- Family Law
State v. Moore
The amendments made to ORS 131.125 were intended to extend the limitations period in the case of incidents of sexual abuse that had not yet been barred under the previous statute.
Under ORS 161.067(3), a court can enter multiple convictions for criminal conduct involving the same conduct or criminal episode, same victim, and same statutory provision only if the violations are separated from one another by a “sufficient pause” in the defendant’s criminal conduct. State v. Bradley, 307 Or App 374, 380, 477 P3d 409 (2020).
- Criminal Law
Brush and Brush
A trial court’s “just and proper” division of marital property requires consideration of both the statutory factors in ORS 107.105(1)(f) and equitable factors. Kunze and Kunze, 337 Or 122, 135, 92 P3d 100 (2004).
Area(s) of Law:- Family Law
Sullivan v. SAIF
For a board's order to be supported by substantial evidence, it must point out “what findings the board made and how those findings led the board to its ultimate conclusion—that is, it must be supported by substantial reason.” Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988).
Area(s) of Law:- Workers Compensation