PAGE 1 – WALKER PLACE LLC’S MOTIONS FOR PARTIAL 

SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF 

LAW 

 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

KEITH A. PITT, OSB No. 973725 

keith@slindenelson.com 

NICHOLAS J. SLINDE, OSB No. 003900 

nick@slindenelson.com

PHIL J. NELSON, OSB No. 013650 

phil@slindenelson.com

SLINDE NELSON STANFORD 

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

Telephone: (503) 417-7777 

Fax: (503) 417-4250 

Of Attorneys for Defendant Walker Place, LLC

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION

ROSS DRESS FOR LESS, INC., a Delaware 

corporation, 

 Plaintiff, 

v. 

MAKARIOS-OREGON, LLC, an Oregon 

limited liability company; and WALKER 

PLACE, LLC, an Oregon limited liability 

company,

 Defendants, 

Case No. 3:14-cv-01971 

WALKER PLACE LLC’S MOTIONS 

FOR PARTIAL SUMMARY 

JUDGMENT AND SUPPORTING 

MEMORANDUM OF LAW 

(ORAL ARGUMENT REQUESTED)

CERTIFICATE OF COMPLIANCE 

Pursuant to Local Rule 7.1, Walker Place, LLC hereby certifies that it has made a good 

faith attempt to confer with Plaintiff’s counsel, and have been unable to resolve the matters in 

dispute. 

 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 1 of 31
PAGE 2 – WALKER PLACE LLC’S MOTIONS FOR PARTIAL 

SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF 

LAW 

 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

MOTIONS 

COMES NOW Defendant Walker Place, LLC (“Walker Place”), by and through its 

attorneys, Slinde Nelson Stanford, and, pursuant to FRCP 56, hereby moves the Court for partial 

summary judgment, in its favor, and against Plaintiff Ross Dress for Less, Inc.’s (“Plaintiff” or 

“Ross”) Complaint for Declaratory Relief and in connection with Plaintiff’s Affirmative 

Defenses to Walker Place’s First, Second, and Third Counterclaims on the following issues: 

(1) Walker Place is entitled to partial summary judgment on its First, Second, and 

Third Counterclaims (for declaratory relief, breach of contract, and statutory 

waste) pertaining to Plaintiff’s removal of all historical “retail/mercantile” 

occupancy from the basement of the Failing Building, and Plaintiff’s 

anticipatory breach and refusal to address and restore the same at the 

conclusion of its tenancy.1

(2) Walker Place is entitled to partial summary judgment on each of Plaintiff’s 

affirmative defenses to Walker Place’s First, Second, and Third 

Counterclaims as follows: 

(a) Walker Place is entitled to partial summary judgment on Plaintiff’s 

First Affirmative Defense (Failure to State a Claim) as it is “not a 

true” affirmative defense; 

(b) Walker Place is entitled to partial summary judgment on Plaintiff’s 

Second Affirmative Defense (Waiver) as there is no genuine issue 

of material fact regarding the elements and application of that 

 

1

 This particular Motion is directed solely to the issue of whether “waste” and violation of 

Plaintiff’s contractual “surrender” obligations have occurred regarding this discrete issue. The 

related issue of Walker Place’s “damages” resulting therefrom, including the issues of treble 

damages under ORS 105.805, is question for a jury to determine. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 2 of 31
PAGE 3 – WALKER PLACE LLC’S MOTIONS FOR PARTIAL 

SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF 

LAW 

 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

defense under Oregon law, and Walker Place is entitled to 

judgment as a matter of law. 

(c) Walker Place is entitled to partial summary judgment on Plaintiff’s 

Third Affirmative Defense (Estoppel) as there is no genuine issue 

of material fact regarding the elements and application of that 

defense under Oregon law, and Walker Place is entitled to 

judgment as a matter of law; 

(d) Walker Place is entitled to partial summary judgment on Plaintiff’s 

Fourth Affirmative Defense (Unclean Hands) as there is no 

genuine issue of material fact regarding the elements and 

application of that defense under Oregon law, and Walker Place is 

entitled to judgment as a matter of law; 

(e) Walker Place is entitled to partial summary judgment on Plaintiff’s 

Fifth Affirmative Defense (Laches) as there is no genuine issue of 

material fact regarding the elements and application of that defense 

under Oregon law, and Walker Place is entitled to judgment as a 

matter of law; 

(f) Walker Place is entitled to partial summary judgment on Plaintiff’s 

Sixth Affirmative Defense (Breach by Walker Place) as there is no 

genuine issue of material fact regarding a “material breach” of 

contract by Walker Place under Oregon law, and Walker Place is 

entitled to judgment as a matter of law; 

(g) Walker Place is entitled to partial summary judgment on Plaintiff’s 

Seventh Affirmative Defense (Statute of Limitations) as there is no 

genuine issue of material fact that any of Plaintiff’s “separation” or 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 3 of 31
PAGE 4 – WALKER PLACE LLC’S MOTIONS FOR PARTIAL 

SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF 

LAW 

 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

“surrender” obligations under the Failing Lease or its statutory 

claim for “waste,” as applied to the removed “retail/mercantile” 

occupancy in the basement of the Failing Building, are time barred 

under ORS 12.080, and Walker Place is entitled to judgment as a 

matter of law. 

(3) Walker Place joins in Makarios-Oregon, LLC’s (“Makarios”) “Motion No. 1” 

insofar as Plaintiff’s declaratory relief claim must be denied, as a matter of 

law, because Plaintiff’s separation and surrender plans are inadequate and 

incomplete, particularly with regard to Plaintiff’s obligation under the 

“Severance” provisions of the Failing Lease to render the Failing Building as 

“physically separate” and “entirely independent and self-sufficient” as 

required therein. 

These Motions are made in good faith, not for purpose of delay, and in the opinion of 

counsel is well founded in law. Walker Place relies upon FRCP 56, the declaration(s) and 

exhibits supplied herein, and the attached Memorandum of Law, all incorporated by this 

reference. 

DATED this 1st day of February 2016. 

 

SLINDE NELSON STANFORD 

By: / s / Keith A. Pitt 

 Keith A. Pitt, OSB No. 973725 

Of Attorneys for Walker Place, LLC 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 4 of 31
i – Table of Contents and Authorities 

 SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

TABLE OF CONTENTS 

MEMORANDUM OF LAW .......................................................................................................... 1 

Introduction ......................................................................................................................... 1 

Plaintiff’s Strip and Removal of Historical Occupancy 

from the Failing Building.............................................................................................. 1 

Argument ............................................................................................................................ 4 

I. Standard of Review. ................................................................................................ 4 

II. Plaintiff’s Removal of All “Retail/Mercantile” Occupancy in the 

Failing Building Basement Constitutes Statutory Waste and Violates 

the Surrender Obligations of the Failing Lease as a Matter of Law. ...................... 5 

A. Plaintiff’s Surrender Obligations/Violations Under The Failing Lease. .......... 5 

B. Plaintiff’s Statutory Obligations/Liability Under ORS 105.805....................... 7 

III. Walker Place Is Entitled To Partial Summary Judgment Against Plaintiff’s 

Affirmative Defenses. ........................................................................................... 10 

A. First Affirmative Defense (Failure to State a Claim). ..................................... 11 

B. Second Affirmative Defense (Waiver). .......................................................... 11 

C. Third Affirmative Defense (Estoppel). ........................................................... 13 

D. Fourth Affirmative Defense (Unclean Hands). ............................................... 14 

E. Fifth Affirmative Defense (Laches). ............................................................... 15 

F. Sixth Affirmative Defense (Breach by Walker Place). ................................... 15 

G. Seventh Affirmative Defense (Statute of Limitations). .................................. 16 

i. ORS 12.080(1). ......................................................................................... 17 

ii. ORS 12.080(3). ......................................................................................... 18 

IV. Walker Place Is Entitled to Partial Summary Judgment Regarding The Relief 

Sought by Makarios-Oregon, LLC In Its Motion No. 1 Regarding the “Severance” 

Obligations of Plaintiff Under The Failing Lease and Richmond Lease. ............. 18 

Conclusion ........................................................................................................................ 21 

CERTIFICATE OF COMPLIANCE WITH L.R. 7-2(B)(2) ........................................................ 22 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 5 of 31
ii – Table of Contents and Authorities 

 SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

TABLE OF AUTHORITIES 

Cases

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ............................................................... 4 

Ball v. Day, 

57 Or App 384, 644 P.2d 649 (1982) .......................................................................................... 9

Bank of Eastern Oregon v. Griffith, 

101 Or App 528, 792 P.2d 1210 (1990).................................................................................... 12 

Bennett v. Farmers Ins. Co., 

332 Or. 138, 26 P.3d 785 (2001) .............................................................................................. 11 

Bisio v. Madenwald, 

33 Or App 325, 576 P.2d 801, rev. den. 283 Or 1 (1978) ........................................................ 16 

Brown v. Portland Sch. Dist. No. 1, 

291 Or 77, 628 P.2d 1183 (1981) ............................................................................................. 11 

Celotex Corp. v. Caltrett, 

477 U.S. 317, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986) ............................................................. 10 

Communication Management Services, LLC v. Qwest Corp., 

67 F.Supp.3d 1159 (D.Or. 2014) .............................................................................................. 15 

Crain v. Siegel, 151 Or App 567, 950 P.2d 382 (1997)...................................................................................... 11 

Day v. Advanced M & D Sales, Inc., 336 Or 511 (2004) ................................................................................................................. 9, 13 

DCIPA, LLC v. Lucile Slater Packard Children’s Hosp. at Stanford, 868 F.Supp.2d 1042 (D.Or. 2011) ............................................................................................ 14

Deering v. Lassen Cmty. Coll. Dist., 

No. 2:07–CV1521–JAM–DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) ................... 4 

Del Monte Fresh Produce N.A., Inc. v. H.J. Heinz Co., 2008 WL 607415, *1 (D.Or. 2008)..................................................................................... 14, 15 

Garcia v. Lupton, 

2016 WL 107955. *5 (D.Or. 2006)........................................................................................... 16 

Genesis Indem. Ins. Co. v. Deschutes Cnty., 

194 Or App 446, 95 P.3d 748 (2004) ........................................................................................ 11 

Goodwin v. Kingsmen Plastering, Inc., 

267 Or App 506, 340 P.3d 169 (2014)...................................................................................... 18 

Hamilton v. Silven, Schmeits & Vaughan, P.C., 2011 WL 6887132, *6 (D.Or. 2011)......................................................................................... 13 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 6 of 31
iii – Table of Contents and Authorities 

 SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Table of Authorities (con't.) 

Cases

Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989) ...................................................................................................... 4 

In re Emerson Street, LLC, 2012 WL 6174995, *2 (Bnkr. Or. 2012) .................................................................................... 8 

In re Oracle Corp. Sec. Litig., 627 F.3d 376 (9th Cir. 2010) ...................................................................................................... 4 

In re Stout’s Estate, 151 Or 411, 50 P.2d 768 (1935) ......................................................................................... 7, 8, 9 

Ionian Corp. v. Country Mut. Ins. Corp., 

88 F.Supp.3d 1187 (D.Or. 2015) .............................................................................................. 12 

James v. Recontrust Co., 2011 WL 3841558, *4 (D.Or. 2011)......................................................................................... 14 

Johnson v. Northwest Acceptance Corp., 259 Or 1, 485 P.2d 12 (1971) ..................................................................................................... 9 

Kantor v. Boise Cascade Corp., 75 Or App 698, 708 P.2d 356 (1985) ........................................................................................ 17 

LVRC Holdings LLC v. Brekka, 

581 F.3d 1127 (9th Cir. 2009) .................................................................................................... 4 

McKinley v. Weidner, 

73 Or App 396, 698 P.2d 983 (1985) ........................................................................................ 14 

Meunier v. Northwestern Mut. Life Ins. Co., 

51 F.Supp.3d 1023 (D.Or. 2014) .............................................................................................. 17 

Miller v. Glenn Miller Prod., Inc., 

454 F.3d 975 (9th Cir. 2006) ...................................................................................................... 4 

Mountain High Homeowners Ass’n v. J.L. Ward Co., 

228 Or App 424, 440, 209 P.3d 347 (2009)................................................................................ 8 

Reeder v. Kay, 282 Or 191, 577 P.2d 925 (1978) ............................................................................................. 16 

Rise v. Steckel, 59 Or App 675, 652 P.2d 364, 369 (1982)................................................................................ 14 

Rivera v. Philip Morris, Inc., 78395 F.3d 1142 (9th Cir. 2005) ................................................................................................ 4 

Smith v. Martin, 

94 Or 132, 185 P. 236 (1919) ................................................................................................... 11 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 7 of 31
iv – Table of Contents and Authorities 

 SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Table of Authorities (con't.) 

Cases

Stanley v. Mueller, 222 Or 194, 350 P.2d 880, 887 (1960) ..................................................................................... 12 

S-Tronix v. Submedia, LLC, 2009 WL 152521, *3 (D.Or. 2009)............................................................................................. 6 

Tri-County Metropolitan Transit Dist. v. Time Warner Telecom of Oregon, LLC, 2008 WL 4572519, *6 (D.Or. 2008)......................................................................................... 12 

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) .................................................................................................... 4 

Vollertsen v. Lamb, 302 Or 489, 732 P.2d 486 (1987) ............................................................................................... 5 

Voltage Pictures, LLC v. Blake, 2015 WL 9272880, *6 (D.Or. 2015)................................................................................... 10, 11 

Washington Mut. Inc. v. United States, 636 F.3d 1207 (9th Cir. 2011) .................................................................................................... 4 

Wasserburger v. American Scientific Chemical, Inc., 267 Or 77, 514 P.2d 1097 (1973) ............................................................................................. 16 

Welsh v. Case, 

180 Or App 370, 43 P.3d 445, 454 (2002)................................................................................ 14 

Whistler v. Hyder, 

129 Or App 344 (1994) ........................................................................................................... 8, 9 

Zivkovic v. S. Cal. Edison Co., 

302 F.3d 1080 (9th Cir. 2002) .................................................................................................. 11 

Zurcher v. Booth, 

80 Or 335, 157 P. 147 (1916) ................................................................................................... 17 

Statutes

Oregon Revised Statute 

 § 12.080............................................................................................................................... 16, 17 

 § 12.080(1) ............................................................................................................................. i, 17 

 § 12.080(3) ....................................................................................................................... i, 17, 18 

 § 42.300..................................................................................................................................... 20 

 § 79.4060................................................................................................................................... 12 

 § 105.805............................................................................................................................ passim 

Rule

Federal Rules of Civil Procedure 

§ 56(a) ......................................................................................................................................... 4 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 8 of 31
Page 1 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

MEMORANDUM OF LAW 

Introduction 

In 1996 Plaintiff acquired the Failing Lease and Richmond Lease out of the bankruptcy 

involving JJ Newberry Company (“Newberry”). In acquiring those leases, Plaintiff likewise 

acquired a unique set of benefits and burdens regarding these two buildings. The Benefit: a 

substantially discounted, below market lease rate for the entire 20 years of the Plaintiff’s 

occupancy, which discount had likewise existed during years Newberry held the leases. The 

Burden: At the conclusion of these leases, Plaintiff assumed an affirmative obligation to render 

the two buildings “entirely independent and self-sufficient” from one another. 

Plaintiff, having now consumed all available benefits from these leases, now refuses to 

perform the corresponding burdens, retreating instead into a series of self-serving arguments and 

unprincipled readings of the applicable lease provisions. 

As detailed below, Walker Place’s motions relate to discrete issues pertaining to 

(1) Plaintiff’s “separation” obligations to fully and “physically separate” the Failing Building and 

Richmond Building,2 and (2) Plaintiff’s “surrender” obligations to address/restore the historical 

occupancy within the basement of the Failing Building, which occupancy Plaintiff affirmatively 

stripped and removed in connection with its 1996 remodel of the Failing Building. 

The pertinent, undisputed facts related to Plaintiff’s “surrender” obligations regarding the 

basement of the Failing Building follow. 

Plaintiff’s Strip and Removal of Historical Occupancy from the Failing Building. 

In 1996, Plaintiff spent over $2 million in renovations to the space to adapt it to its needs. 

Prior to that renovation, the Failing Building included an open “grand staircase” leading from the 

 

2

 As to Plaintiff’s “separation” obligations, Walker Place incorporates the corresponding 

facts/argument from the Makarios motion for partial summary judgment, and which Walker 

Place hereby joins and supplements in Section IV below. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 9 of 31
Page 2 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

main retail floor of the Failing Building down to the basement retail floor.3 Further, prior to that 

renovation in 1996, the Failing Building provided “retail/mercantile” occupancy in the basement, 

which use of that space was likewise available to Plaintiff.4 

Notwithstanding, apparently undesirable to Plaintiff, it filled in the “grand staircase” with 

new floor framing, and undertook other alterations, abandoning the previous “mercantile/retail” 

use of that space.5 In addition – and more importantly – when Plaintiff submitted its plans to the 

City of Portland in 1996, Plaintiff affirmatively stripped the entire Failing Building basement of 

its historical occupancy, noting: 

“VACANT NO OCCUPANCY – NO STORAGE SEPARATE PERMIT 

REQUIRED FOR OCCUPANCY.”6 

In electing to strip all occupancy from the Failing Building basement, Plaintiff never 

considered what effect that decision may have on future use of that space.7 Nor did Plaintiff ever 

seek approval from or alert the ownership of the Failing Building of Plaintiff’s self-serving 

election to strip all such occupancy prior to commencing its “remodel” of the Failing Building 

basement. 

Further, as a direct result of that 1996 election – i.e., Plaintiff’s election to strip all 

occupancy from the basement in the Failing Building – substantial seismic upgrades are now 

required to restore historical retail/mercantile occupancy of the basement.8 Stated in concrete 

numbers, prior to Plaintiff’s election, the occupancy of the Failing Building basement included a 

“retail/mercantile” use, and allowed a total of 317 occupants. Today, by stark contrast, pursuant 

 

3

 Declaration of Keith A. Pitt, “Pitt Decl.,” Ex. A, Pg. 7 (Haskins Dep., Pg. 142:10-18). 

4

 Id., Pgs. 7 and 14 (Haskins Dep., Pgs. 142:20-25 and 151:6-13). 

5

 Pitt Decl., Ex. B – Ross 1996 Construction Drawings, sheet D1.0, D1.1, A1.0, A1.1, S1. 

6

 Id. at Sheet A1.0. 

7

 Pitt Decl., Ex. A, Pgs. 14-17 (Haskins Dep., Pgs. 151-154). 

8

 Pitt Decl., Ex. C, Pgs. 7 and 8 (Waterleaf Reports – Memo and Seismic Upgrade Costs). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 10 of 31
Page 3 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

to the 2004 City of Portland seismic code, the allowable “use” of the Failing Building basement 

has been reduced to “1” occupant, effectively rendering it useless.9

 Throughout this litigation, Plaintiff is incredulous that it should even care, outside of its 

own desired use of the building, whether the historical “retail/mercantile” occupancy should ever 

be reestablished in the basement of the Failing Building.10 Indeed, during the recent deposition 

of Plaintiff’s expert Brian Bowles – the architect who submitted Plaintiff’s October 2015 “plans” 

to the City of Portland regarding this matter – underscored that Plaintiff has no intention 

whatsoever to remedy/address this issue: 

Q: BY MR. PITT: First of all, the plans -- that’s a good point. The plans don’t, 

in any way, shape, or form, begin to try to address the occupancy issues in the 

Failing Building or Richmond Building basements – 

MS. REICHMUTH: Objection. 

Q: BY MR. PITT: -- fair? 

MS. REICHMUTH: Vague and ambiguous. 

THE WITNESS: Correct.11

The undisputed facts are simple and straightforward. Plaintiff’s intentions and refusal to 

take responsibility regarding this matter are likewise clear and unambiguous. 

As detailed below, Walker Place’s present motions are narrow/targeted to the discrete 

issues over which there is no genuine issue of material fact. For the reasons detailed below, 

Walker Place is entitled to partial summary judgment on these discrete issues. 

/// 

 

9

 Id.

10 Pitt Decl., Ex. D, Pgs. 3-16 (McGillis Dep., Pgs. 88-101). 

11 Pitt Decl., Ex. E, Pg. 7 (Bowles Dep, 239:6-12) (emphasis supplied). On that score, 

Plaintiff has not even bothered to inquire with the City of Portland regarding the substantial 

“seismic” upgrades that are now required to restore the historical occupancy to the basement of 

the Failing Building. (Pitt Decl., Ex. E, Pg. 8 (Bowles Dep, 240:1-14)). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 11 of 31
Page 4 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Argument 

I. Standard of Review. 

Summary judgment is appropriate when “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.”12 In response to a motion for 

summary judgment, the nonmoving party must go beyond the pleadings and show there is a 

genuine dispute as to a material fact for trial.13 “This burden is not a light one.... The non-moving 

party must do more than show there is some ‘metaphysical doubt’ as to the material facts at 

issue.”14 A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.”15 A “mere disagreement or bald assertion” that a 

genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.”16 

When the nonmoving party’s claims are factually implausible, that party must “come 

forward with more persuasive evidence than otherwise would be necessary.”17 The substantive 

law governing a claim or a defense determines whether a fact is material.18 Finally, if the 

resolution of a factual dispute would not affect the outcome of the claim, the court may grant 

summary judgment.19 

 

12 Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011); 

Fed.R.Civ.P. 56(a). 

13 Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). 

14 In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). 

15 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) 

16 Deering v. Lassen Cmty. Coll. Dist., No. 2:07–CV1521–JAM–DAD, 2011 WL 202797, at 

*2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)) 

17 LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted). 

18 Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). 

19 Id.

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 12 of 31
Page 5 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

II. Plaintiff’s Removal of All “Retail/Mercantile” Occupancy in the Failing 

Building Basement Constitutes Statutory Waste and Violates the Surrender 

Obligations of the Failing Lease as a Matter of Law. 

As detailed below, Plaintiff’s removal of all “retail/mercantile” occupancy from the 

Failing Building basement violates both the express terms of the Failing Lease, as amended, as 

well as ORS 105.805. Although the analysis overlaps, the contractual and statutory basis for 

liability is addressed separately below.20

A. Plaintiff’s Surrender Obligations/Violations Under The Failing Lease. 

This discrete issue – and Plaintiff’s associated “surrender” obligations herein – are 

expressly governed by two documents: (i) The 1996 Sixth Amendment to the Failing Lease, and 

(ii) the 1956 Amended and Restated Failing Lease, each of which affirmatively places the 

obligation – and liability – on Plaintiff to address and restore the “retail/mercantile” occupancy 

to the Failing Building basement. 

The Sixth Amendment to the Failing Lease states, in relevant part: 

“3. *** Lessee shall have the right to remodel the leased premises and to 

make other alterations in the leased premises provided that such work is done 

pursuant to the plans of a competent architect and after said plans have been 

approved in writing by Lessor. Lessor hereby covenants to not unreasonably 

withhold or delay the granting of consent to such plans. In altering or 

remodeling the leased premises, Lessee shall not injure or change the general 

structural character of the leased premises or the building of which the 

premises are a part and all work shall be done in full compliance with all federal, 

state and municipal laws and regulations and shall not result in any increase in the 

fire insurance rating of the building of which the leased premises are a part. 

Lessee agrees that it will bear any responsibility for costs and expenses 

associated with any modifications to the building which, as a result of Lessee’s 

work or other activities in the building, may be required by federal, state or local 

laws including but not limited to the American with Disabilities Act, seismic 

laws, fire and life safety laws, environmental or hazardous materials laws and 

regulation. 

4. Except as hereby modified, the Lease shall remain in full force and 

effect.”21

 

20 Vollertsen v. Lamb, 302 Or 489, 497, 732 P.2d 486 (1987) (Holding property owner may 

maintain a claim for “waste” against tenant under both a lease agreement and ORS 105.805) 

21 Pitt Decl., Ex. F – 1996 Sixth Amendment, Pg. 3, Paragraph 3 (emphasis supplied). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 13 of 31
Page 6 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Under the Lessee’s Covenants of the 1956 Failing Lease, Plaintiff’s “surrender” 

obligations are as follows: 

“Lessee covenants and agrees: *** (f) That it will at the expiration of the term 

hereof, or at the earlier termination of this lease surrender the premises to the 

Lessors or those having there estate therein in the same condition as that which 

the Lessee is, by the terms of this lease, obligated to put the premises, reasonable 

use and wear thereof, and damage due to fire, excepted. ***.”22

The “same condition as that which the Lessee [Ross] is, by the terms of the lease, 

obligated to put the premises,” expressly includes the following: 

“(c) That it will during the term hereof at its sole cost and expense keep the 

leased premises in good condition and repair.... *** (h) Not to commit or suffer 

any strip or waste of the leased premises...”23

Here, the language excerpted from both the 1996 Sixth Amendment and the 1956 Failing 

Lease imposes affirmative, unambiguous obligations on Plaintiff with regard to: (1) any 

consequences that “result” from its work/activities in the Failing Building, and (2) its “surrender” 

obligations to deliver the leased premises in a state of “good condition and repair” and not in a 

condition of “strip or waste.”24

Indeed, it is clear that in contemplating that Plaintiff would undertake some type of 

“remodel” in the Failing Building in 1996, the parties were exceedingly clear that Plaintiff alone 

would be responsible for “any modifications to the building,” that may be required “as a result of 

[Ross’] work or other actives in the building,” including, among other “code” requirements, 

compliance with all “seismic laws.” As noted in above, as a direct result of the 1996 work, and 

Plaintiff’s election to strip all occupancy from the basement in the Failing Building, substantial 

 

22 Pitt Decl., Ex. G – 1956 Failing Lease, Pg. 8 (emphasis supplied). 

23 Id. – 1956 Failing Lease, Pgs. 7-8 (emphasis supplied). 

24 S-Tronix v. Submedia, LLC, 2009 WL 152521, *3 (D.Or. 2009) (“[I]n Oregon ‘it is 

hornbook law that strict and literal, rather than ‘substantial,’ compliance is required of express 

conditions.’”) (citation omitted). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 14 of 31
Page 7 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

seismic upgrades are now required to restore historical retail/mercantile occupancy of the 

basement.25 

Moreover, the above language must be read in conjunction with express language in the 

1956 Failing Lease that requires Plaintiff to keep the leased premises in “good condition and 

repair” and affirmatively precludes Plaintiff from committing “strip or waste” of the entire 

leased premises, including the basement. Nor can there be any legitimate dispute that Plaintiff’s 

unilateral removal of all “retail/mercantile” occupancy from then basement constitutes “strip or 

waste” of that portion of the Failing Building.26 

In the final analysis, Plaintiff is, without question, required to “surrender” the entire

“leased premises,” including the basement, with the same historical retail/mercantile occupancy 

that existed in 1956 and when Plaintiff acquired the lease in 1996. 

Accordingly, as there is no genuine issue of material fact – either as to the proper 

interpretation of the excerpted provisions of the Failing Lease, or Plaintiff’s refusal to address 

and restore the historical “retail/mercantile” occupancy in the basement – the Court should grant 

summary judgment, in favor of Walker Place, as to this discrete issue. 

B. Plaintiff’s Statutory Obligations/Liability Under ORS 105.805. 

Walker Place has pled claims for “waste” under both the express language of the Failing 

Lease and ORS 105.805, which statute provides in relevant part: 

“If a *** tenant *** for life or for years of real property commits waste thereon, 

any person injured thereby may maintain an action at law for damages against the 

*** tenant. In the action there may be judgment for treble damages, forfeiture of 

 

25 The above language is also clearly not limited in time to only when Plaintiff initially 

undertook such “work” in 1996 but, rather, is broadly stated to encompass “modifications to the 

building” that “may be required” as “a result of Lessee’s work or other activities.” This “as a 

result” language places the obligation on Plaintiff to address its removal of occupancy in the 

basement and remedy the same at the termination of the lease. 

26 In re Stout’s Estate, 151 Or 411, 422, 50 P.2d 768 (1935) (“The question of what 

constitutes waste is determined primarily by the circumstance of whether or not the act, either 

of commission or omission, results in injury to the reversioner or the remainderman.”). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 15 of 31
Page 8 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

the estate of the party committing or permitting the waste and eviction from the 

property. ***.”27 

Aside from the clear violation of the express language of the Failing Lease, what 

constitutes “waste” is well established under Oregon law. Specifically, “‘[w]aste’ occurs when a 

person in possession of the land, by act or omission, causes the property’s value to decrease as 

the result of abuse or destruction, thereby causing injury to the property and the holders of 

legal interests in it.”28 Further, the Oregon Supreme Court has noted that whether “waste” has 

occurred is dependent on the particular circumstances presented: 

“In this case, as in an action for waste under the common law, there can be no 

absolute rule as to what shall constitute a want of substantial repair under all 

conditions. This depends upon the character of the building, its age, its 

location for the business to which it is adapted, the extent of the acts 

committed or allowed, and their effect upon the property in question. The 

circumstances to be taken into account are so various that the case is one 

which raises a question of fact. *** [I]t is said that: ‘An agreement that he will 

keep and leave the demised premises in good and tenantable repair obliges 

him to leave the premises in such repair as, taking into consideration the age, 

character, and locality, would make them reasonably fit for the occupation of 

a reasonably minded tenant of the class that would be likely to want 

such premises. Whether the tenant is bound under such an agreement to repaint 

and repaper the premises depends upon whether the paint and paper are in such a 

bad state that no reasonably minded tenant would take the premises as they 

are.’ ‘The life tenant is bound to keep the premises in as good repair as they 

were when he took them, not excepting ordinary or natural wear and tear; if 

a new roof is needed he is bound to put it on; if paint wears off he is bound to 

repaint.’”29

 

27 ORS 105.805 (Waste). 

28 Whistler v. Hyder, 129 Or App 344 (1994) (emphasis supplied). 

29 In re Stout’s Estate, 151 Or 411, 50 P.2d 768 (1935) (emphasis supplied); see also In re 

Emerson Street, LLC, 2012 WL 6174995, *2 (Bnkr. Or. 2012) (“Waste *** ‘occurs when the 

person in possession of the land, by act or omission, causes the property’s value to decrease as 

the result of abuse or destruction, thereby causing injury to the property and the holders of the 

legal interests in it.’”) (citations omitted); Mountain High Homeowners Ass’n v. J.L. Ward Co.,

228 Or App 424, 440, 209 P.3d 347 (2009) (Addressing a claim arising out of an improper 

placement of a servitude on land, the Court of Appeals held: “Waste occurs when a person or 

entity in possession of land, by act or omission, causes a decrease in value of the property 

interest in that land held by another who does not have possession.”). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 16 of 31
Page 9 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

 Here, Plaintiff committed waste of the historical “mercantile/retail” occupancy of 

basement of the Failing Building through, among other actions: (a) by its removal of the grand 

staircase that used to service the basement and first floor,30 (b) by affirmatively stripping all 

occupancy out of the basement in connection with its 1996 permits submitted to the City of 

Portland, and (c) by removing and abandoning the “mercantile/retail” HVAC, electrical, lighting, 

fire and life safety systems, and restrooms from that space. Plaintiff’s unilateral elections 

regarding its desired “use” of the basement does not, however, relieve Plaintiff of its contractual 

and statutory obligations to remedy those conditions upon termination of the Failing Lease.31 

 Following a ruling that Plaintiff has committed waste through the removal of the 

historical occupancy in the basement, Walker Place will present evidence (to the jury) of its 

resulting damages, comprised of either a diminution in the overall value of the Failing Building 

or, in the alternative, the cost to reestablish the historical “retail/mercantile” occupancy to the 

basement of the Failing Building.32 

 

30 Indeed, the filling in of the grand staircase and removal of historical exits servicing the 

Failing Building basement also constitute a violation of the 1996 Sixth Amendment to the 

Failing Lease, which provides: “In altering or remodeling the leased premises, the Lessee shall 

not injure or change the general structural character of the leased premises or the building of 

which the premises are a part ***.” (Pitt Decl., Ex. F – 1996 Sixth Amendment, Pg. 3, 

Para. 3). 

31 See Ball v. Day, 57 Or App 384, 387, 644 P.2d 649 (1982) (“As a general rule, a 

commercial landlord has no duty to make repairs, and a decision by the tenant to alter the 

leased premises cannot in itself impose a duty upon the landlord to make repairs compatible 

with the tenant’s alterations.”) (emphasis supplied); See also Whistler v. Hyder, 129 Or App 

344, 348-349, 879 P.2d 214 (1994) (“The law imposes a duty of good faith and fair dealing in 

contracts to facilitate performance and enforcement in a manner that is consistent with the terms 

of the contract and that effectuates the reasonable contractual expectations of the parties. That 

implied duty is part of the requirement that [the tenants] keep the improvements in good 

condition.”) (citations omitted). 

32 In re Stout’s Estate,151 Or 411, 423-424, 50 P.2d 768 (1935) (“The amount of recovery 

is the difference between the value of the property in its present condition and what it would be 

worth had the life tenant maintained and repaired the premises as a prudent person would have 

done under similar circumstances, or, in other words, the loss suffered by diminution in value of 

the property.”); Johnson v. Northwest Acceptance Corp., 259 Or 1, 11-13, 485 P.2d 12 (1971) 

(“This court has approved instructions stating that the measure of damages for waste is 

diminution of value. We also have held, however, that the proof of such diminution of value can 

be made by introducing the cost of repairs. *** ‘It appears that, since the allowance of damages 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 17 of 31
Page 10 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Accordingly, as there is no genuine issue of material fact – either as to the proper 

interpretation of the excerpted provisions of the Failing Lease, or Plaintiff’s violation of 

ORS 105.805 – the Court should grant summary judgment as to this discrete issue. 

III. Walker Place Is Entitled To Partial Summary Judgment Against Plaintiff’s 

Affirmative Defenses. 

In response to Walker Place’s Counterclaims, Plaintiff purports to assert a series of 

generic, overtly misplaced “affirmative defenses,”33 all of which are either clearly inapplicable to 

Walker Place’s specific Counterclaims, as a matter of law, or simply lack any factual support 

whatsoever.34 For the reasons detailed below, Walker Place is entitled to summary judgment on 

each of Plaintiff’s affirmative defenses, all of which lack substantive merit.35 

/// 

 

is to award just compensation without enrichment, there is no universal test for determining the 

value of property injured or destroyed and that the mode and amount of proof must be adapted to 

the facts of each case. * * *’”) (citations omitted). Although not necessary to this Motion, or the 

discrete issue now before the Court, evidence pertaining to the recovery of both “cost of repair” 

and “diminution is value” is attached hereto. (Pitt Decl., Ex. C, Pgs. 7 and 8 (Waterleaf Reports – 

Memo and Seismic Upgrade Costs); and Pitt Decl., Ex. H, Pgs. 2-5 (Heerman Report, November 

6, 2015, Pgs. 2-5). 

33 Plaintiff’s boilerplate “affirmative defenses,” wholly devoid of factual detail, are as 

follows: (1) Failure to State a Claim, (2) Waiver, (3) Estoppel, (4) Unclean Hands, (5) Laches, 

(6) Breach by Walker Place, and (7) Statute of Limitations. (Dkt. #23 – Pl. Aff. Def., Pgs. 6-8). 

34 Voltage Pictures, LLC v. Blake, 2015 WL 9272880, *6 (D.Or. 2015) (“This court and a 

majority of other district courts in this circuit also apply the Twombley and Iqbal plausibility 

requirements to affirmative defenses. Accordingly, an affirmative defense must give notice of 

the nature of the defense and provide a plausible factual basis for the defense.”) (emphasis 

supplied); Celotex Corp. v. Caltrett, 477 U.S. 317, 323-324, 91 L.Ed.2d 265, 106 S.Ct. 2548 

(1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose 

of factually unsupported claims or defenses....”) (emphasis supplied). 

35 An early ruling on these discrete issues is important as it will streamline a resolution of 

the two central issues in this litigation at the time of trial, viz., the “severance” obligations and 

the proper scope of work which Plaintiff is obligated to “separate” the two buildings, and the 

“surrender” obligations, which requires Plaintiff to return the Failing Building in a state of good 

repair and not in a condition of strip or waste. Indeed, the purported affirmative defenses of 

Plaintiff, inapplicable to the Walker Place Counterclaims, would only serve to confuse or 

mislead the jury in this litigation. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 18 of 31
Page 11 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

A. First Affirmative Defense (Failure to State a Claim). 

In its First Affirmative Defense, Plaintiff alleges: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims fail to allege sufficient facts upon which any claim for relief 

against Ross can be granted.”36

It is well established that a mere “denial of liability,” as clearly reflected in the above 

allegations, is not a true affirmative defense.37 Accordingly, the Court should grant summary 

judgment on Plaintiff’s First Affirmative Defense. 

B. Second Affirmative Defense (Waiver). 

In its Second Affirmative Defense, Plaintiff alleges solely: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims are barred, in whole or in part, by the doctrine of waiver.”38

At its base, waiver is “the intentional relinquishment of a known right.”39 

“[I]n the absence of an express agreement a waiver will not be presumed or 

implied contrary to the intention of the party whose rights would be injuriously 

affected thereby, unless by his conduct the opposite party has been misled, to his 

prejudice, into the honest belief that such waiver was intended or consented to. To 

make out a case of waiver of a legal right there must be a clear, unequivocal, 

and decisive act of the party showing such a purpose or acts amounting to an 

estoppel on his part.”40

 

36 Dkt. #23 – Pl. Aff. Def., Pg. 7. 

37 Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“A defense which 

demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.”); 

Voltage Pictures, LLC v. Blake, 2015 WL 9272880, *6 (D.Or. 2015) (“Failure to state a claim is 

not an affirmative defense. Affirmative defenses raise matters extraneous to the complaint. 

Failure to state a claim is a denial of the allegations in a complaint, raising no extraneous issues. 

Accordingly, failure to state a claim is not a proper affirmative defense.”). 

38 Dkt. #23 – Pl. Aff. Def., Pg. 7. 

39 Genesis Indem. Ins. Co. v. Deschutes Cnty., 194 Or App 446, 453, 95 P.3d 748 (2004) 

(citing Bennett v. Farmers Ins. Co., 332 Or. 138, 156, 26 P.3d 785 (2001); Crain v. Siegel,

151 Or App 567, 573, 950 P.2d 382 (1997)). 

40 Brown v. Portland Sch. Dist. No. 1, 291 Or 77, 84, 628 P.2d 1183 (1981) (emphasis 

supplied); Smith v. Martin, 94 Or 132, 141-142, 185 P. 236 (1919) (“Waiver depends upon what 

one himself intends to do; estoppel depends upon what he caused his adversary to do.”) 

(emphasis supplied). The complete absence of any evidence supporting the Ross’ affirmative 

defense for “estoppel” is addressed in Section III C below. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 19 of 31
Page 12 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Here, there is absolutely no evidence of an “express” (i.e., written) waiver, by Walker 

Place (or its predecessors), regarding any contractual, statutory, or common law right 

underpinning the specific damages and relief now sought by Walker Place in its First, Second, 

and Third Counterclaims in this matter.41 Moreover, there is no evidence remotely supporting an 

“implied” waiver – requiring a “clear, unequivocal, or decisive act” – under Oregon law.42

Applied to the primary issues in this litigation, clearly no waiver can exist regarding the 

end of lease “separation” obligations of Plaintiff under the Failing Lease, or the end-of-lease 

“surrender” obligations of Plaintiff to address the consequences of its stripping of all 

“retail/mercantile” occupancy from the Failing Building basement – which became 

permanent/irrevocable in 2004 under the City code – and only discovered as part of this 

litigation.43 

Accordingly, the Court should grant summary judgment on Plaintiff’s Second 

Affirmative Defense. 

 

41 Under the heading of “Waiver,” the 1956 Failing Lease also precludes an alleged waiver 

of Plaintiff’s current “severance” and “surrender” obligations, stating in relevant part: “A waiver 

of any breach of any covenant, term or condition of this lease shall not be considered a waiver 

of any other breach of the same or any other provision or covenants....” (Pitt Decl., Ex. G – 

1956 Failing Lease, Pg. 14, Waiver). 

42 Tri-County Metropolitan Transit Dist. v. Time Warner Telecom of Oregon, LLC, 

2008 WL 4572519, *6 (D.Or. 2008) (“‘Waiver, as distinguished from estoppel, is the intentional 

relinquishment of a known right.’ A party to a written contract may waive a provision of that 

contract by conduct or by oral representation. Waiver by conduct, however, requires a ‘clear, 

unequivocal, decisive act.’”); Ionian Corp. v. Country Mut. Ins. Corp., 88 F.Supp.3d 1187, 1199 

(D.Or. 2015) (“Waiver may be implied by conduct, but there must be ‘clear, decisive and 

unequivocal conduct which indicates a purpose to waive the legal rights involved[.]”’) 

(emphasis supplied); Bank of Eastern Oregon v. Griffith, 101 Or App 528, 536, 792 P.2d 1210 

(1990) (“Waiver is a voluntary, intentional relinquishment of a known right. It is primarily a 

question of intent, which may be express, such as by a written release under ORS 79.4060, or 

implied from the conduct of the secured party. However, the intention to waive must clearly 

appear; it will not be inferred, except from a clear and unequivocal act manifesting an intent 

to waive.”) (emphasis supplied). 

43 Stanley v. Mueller, 222 Or 194, 207, 350 P.2d 880, 887 (1960) (“It is settled law that a 

waiver of a legal right results only when there is both full knowledge of all the facts and the 

existence of the right of election coupled with an intention to relinquish it.”). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 20 of 31
Page 13 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

C. Third Affirmative Defense (Estoppel). 

In its Third Affirmative Defense, Plaintiff alleges solely: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims are barred, in whole or in part, by the doctrine of estoppel.”44

In addition to the absence of any substantive allegations, this defense fails both as a 

matter of law and fact under the weight of the following well established formulation: 

“Under the doctrine of equitable estoppel, ‘a person may be precluded by his act 

or conduct, or silence when it was his duty to speak, from asserting a right which 

he otherwise would have had.’ Equitable estoppel has five elements: 

‘To constitute estoppel by conduct there must (1) be a false 

representation; (2) it must be made with knowledge of the facts; (3) the 

other party must have been ignorant of the truth; (4) it must have been 

made with the intention that it should be acted upon by the other party; 

(5) the other party must have been induced to act upon it[.]’ 

For equitable estoppel to apply, the false representation ‘must be one of existing 

material fact, and not of intention, nor may it be a conclusion from facts or a 

conclusion of law.’”45

Here, Plaintiff will be unable to establish any of the above elements in relation to the any 

of the “separation” or “surrender” obligations of the Failing Lease, and the damages and relief 

now sought by Walker Place in its First, Second, and Third Counterclaims in this matter. 

Respectfully, it is truly difficult to conceive of any scenario where Plaintiff may assert it 

was somehow laboring under a false belief, resulting from any alleged act/omission, attributable 

to Walker Place, and where Walker Place possessed superior, undisclosed information, and 

which information Plaintiff did not itself possess/create in this first instance.46 Nor will there be 

 

44 Dkt. #23 – Pl. Aff. Def., Pg. 7. 

45 Day v. Advanced M & D Sales, Inc., 336 Or 511, 518-519 (2004) (emphasis supplied). 

46 Hamilton v. Silven, Schmeits & Vaughan, P.C., 2011 WL 6887132, *6 (D.Or. 2011) 

(“The party seeking estoppel must demonstrate not only reliance, but a right to rely upon the 

representation of the estopped party ... Reliance is not justified where a party has knowledge to 

the contrary of the fact or representation allegedly relied upon.”) (emphasis supplied). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 21 of 31
Page 14 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

any evidence that Plaintiff would have pursued any different course of action, whether in 1996 or 

anytime thereafter, in relation to the matters that are the subject of Walker Place’s First, Second, 

and Third Counterclaims in this matter.47 

Accordingly, the Court should grant summary judgment on Plaintiff’s Third Affirmative 

Defense. 

D. Fourth Affirmative Defense (Unclean Hands). 

In its Fourth Affirmative Defense, Plaintiff alleges solely: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims are barred, in whole or in part, by the doctrine of unclean hands.”48

Here, there is no basis whatsoever to invoke the doctrine of “unclean hands” in this 

litigation, whether in relation (1) to Walker Place’s First Counter-Claim for Declaratory 

Judgment, an equitable claim, or (2) to Walker Place’s Second and Third Counterclaims, which 

are strictly legal causes of action.49 Moreover, “unclean hands” – an equitable doctrine – has no 

application to Walker Place’s legal causes of action as set forth in its Second and Third 

Counterclaims, which are claims to be presented to the jury.50 

 

47 DCIPA, LLC v. Lucile Slater Packard Children’s Hosp. at Stanford, 868 F.Supp.2d 1042, 

1062 (D.Or. 2011) (Dismissing estoppel defense where, “Defendant failed to introduce any 

evidence that, absent plaintiff’s alleged misrepresentation, it would have taken different 

action....”). 

48 Dkt. #23 – Pl. Aff. Def., Pg. 7. 

49 See Welsh v. Case, 180 Or App 370, 385, 43 P.3d 445, 454 (2002) (“’Unclean hands’ is 

an equitable doctrine under which the court, in order to protect its own integrity, will deny 

equitable relief to a party in a transaction if that party, relative to the same transaction, is ‘guilty 

of improper conduct no matter how improper the [other party’s] behavior may have been.’”). 

50 Rise v. Steckel, 59 Or App 675, 681, 652 P.2d 364, 369 (1982) (“[Unclean hands] applies 

to any party who seeks either the affirmative or defensive intervention of the court for equitable 

relief.”); McKinley v. Weidner, 73 Or App 396, 400, 698 P.2d 983 (1985) (Noting, the 

“substantive application of the equitable doctrine of clean hands to an action at law was 

technically incorrect.”); James v. Recontrust Co., 2011 WL 3841558, *4 (D.Or. 2011) (“The 

cases applying the unclean hands rule involve some nefarious conduct on the part of the party 

barred from equitable relief, not merely a head-to-head disagreement over the legal rights under 

a statute.”); Del Monte Fresh Produce N.A., Inc. v. H.J. Heinz Co., 2008 WL 607415, *1 

(D.Or. 2008) (“Del Monte moves to strike Heinz’s affirmative defense of unclean hands. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 22 of 31
Page 15 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Accordingly, the Court should grant summary judgment on Plaintiff’s Fourth Affirmative 

Defense. 

E. Fifth Affirmative Defense (Laches). 

In its Fifth Affirmative Defense, Plaintiff alleges solely: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims are barred, in whole or in part, by the doctrine of laches.”51

Again, there is no basis to invoke the doctrine of “laches” in this litigation, whether in 

relation to: (1) Walker Place’s First Counter-Claim for Declaratory Judgment, an equitable 

claim, or (2) Walker Place’s Second and Third Counterclaims, which are strictly legal causes of 

action.52 Further, “laches” – an equitable doctrine – has no application whatsoever to Walker 

Place’s legal causes of action as set forth in its Second and Third Counterclaims, which are 

claims to be presented to the jury.53

Accordingly, the Court should grant summary judgment on Plaintiff’s Fifth Affirmative 

Defense. 

F. Sixth Affirmative Defense (Breach by Walker Place). 

In its Sixth Affirmative Defense, Plaintiff alleges solely: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims are barred, in whole or in part, because Walker Place breached its 

own obligations and by reason of such material breach is not entitled to any 

relief.”54

 

Del Monte’s claims are legal causes of action. Consequently, the defense of unclean hands, an 

equitable doctrine, has no application.”). 

51 Dkt. #23 – Pl. Aff. Def., Pg. 7. 

52 Communication Management Services, LLC v. Qwest Corp., 67 F.Supp.3d 1159, 1175 

(D.Or. 2014) (“Laches bars a party from asserting an equitable claim when the party (1) had 

actual or ‘inquiry notice’ of a claim, (2) unreasonably delayed bringing that claim, and (3) the 

delay substantially prejudiced the defendant ‘to the extent that it would be inequitable to afford 

the relief sought.’”) (emphasis supplied). 

53 Id.

54 Dkt. #23 – Pl. Aff. Def., Pg. 8 (emphasis supplied). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 23 of 31
Page 16 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

As an initial matter, the absence of any allegations purporting to detail a specific breach 

by Walker Place of the Failing Lease – much less one of a “material” nature – is certainly 

telling.55 Notwithstanding, there is absolutely no evidence of any material breach – attributable 

to Walker Place – that would support a wholesale relief, of Plaintiff, to perform its corresponding 

obligations to fully comply with either the “separation” or “surrender” obligations of the Failing 

Lease, both of which form the basis of Walker Places First, Second, and Third Counterclaims.56 

Respectfully, Plaintiff will be unable to articulate any non-trivial or otherwise viable 

“breaches” attributable to Walker Place in this matter.57 Accordingly, the Court should grant 

summary judgment on Plaintiff’s Sixth Affirmative Defense. 

G. Seventh Affirmative Defense (Statute of Limitations). 

In its Seventh Affirmative Defense, Plaintiff alleges: 

“Solely by way of an affirmative defense, not to be construed as an admission, the 

Counterclaims are barred, in whole or in part, by the relevant statutes of 

limitations, including O.R.S. § 12.080.”58

As to the end of lease obligations of Plaintiff (i.e., the “separation” and “surrender” 

obligations), which include returning the Failing Building – and its basement – to state of good 

repair and not in a condition of strip or waste – those claims are not barred by ORS 12.080. 

 

55 A material breach of contract occurs if the failure of one party to perform “goes to the 

very substance of the contract and defeats the object of the parties in entering into the contract.” 

Bisio v. Madenwald, 33 Or App 325, 331, 576 P.2d 801, rev. den. 283 Or 1 (1978). 

56 Wasserburger v. American Scientific Chemical, Inc., 267 Or 77, 82, 514 P.2d 1097 

(1973) (“It is also well established, at least as a general rule, that a breach or nonperformance of 

a promise by one party to a bilateral contract so material as to justify a refusal of the other party 

to perform a contractual duty, discharges that duty.”); Garcia v. Lupton, 2016 WL 107955. *5 

(D.Or. 2006) (J. Simon) (“[A] breach or nonperformance of a promise by one party to a bilateral 

contract so material as to justify a refusal of the other party to perform a contractual duty, 

discharges that duty.”). 

57 See Reeder v. Kay, 282 Or 191, 194, 577 P.2d 925 (1978) (“An immaterial breach by one 

party does not operate to discharge an obligation by the other party to perform.”). 

58 Dkt. #23 – Pl. Aff. Def., Pg. 8. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 24 of 31
Page 17 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

Although Plaintiff does not identify which subsections within ORS 12.080 upon which it 

seeks to rely, there can be only two: (1) ORS 12.080(1), applicable to an “action upon a 

contract,” and (2) ORS 12.080(3), applicable to an “action for waste *** or injury to any interest 

of another in real property.” Each will be addressed in turn below. 

i. ORS 12.080(1). 

There can be no credible assertion that the counterclaims of Walker Place regarding the 

“separation” obligations of Plaintiff – the “performance” of which necessarily arise at the 

termination of the Failing Lease – are somehow time barred under ORS 12.080(1).59 

So too with the “surrender” obligations of Plaintiff – which include returning the Failing 

Building (and its basement) to state of good repair and not in a condition of strip or waste – the 

“performance” of which also necessarily arises, under its express terms, at the termination of the 

Failing Lease. Based on Plaintiff’s present, unequivocal repudiation of those “surrender” 

obligations, Walker Place’s counterclaims encompassing those matters are both timely and 

proper.60

Accordingly, as to Walker Place’s First and Second Counterclaims, when viewed as “an 

action upon contract,” the matters encompassed therein are certainly timely, as defined by the 

required “separation” and “surrender” obligations under the Failing Lease at termination, and the 

Court should grant summary judgment on Plaintiff’s Seventh Affirmative Defense. 

/// 

 

59 Meunier v. Northwestern Mut. Life Ins. Co., 51 F.Supp.3d 1023 (D.Or. 2014) (“Under 

Oregon law, a claim for breach of contract accrues when the contract is breached. A breach of 

contract is nonperformance of a duty due under a contract.”) (emphasis supplied); Kantor v. 

Boise Cascade Corp., 75 Or App 698, 703, 708 P.2d 356 (1985) (same). 

60 Zurcher v. Booth, 80 Or 335, 338, 157 P. 147 (1916) (“An action upon a contract or 

liability express or implied can only be commenced within six years after the cause of action 

shall have accrued. The statute of limitations begins to run from the time when a complete 

cause of action accrues; that is, when an action may be maintained.”) (emphasis supplied). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 25 of 31
Page 18 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

ii. ORS 12.080(3). 

It is well established that an “action for waste *** or injury to any interest of another in 

real property” is subject to a discovery rule.61 

Here, as to Walker Place’s Third Counterclaim seeking damages arising out of the 

profound consequences resulting from Plaintiff’s election to strip all occupancy from the 

basement of the Failing Building – which election only became permanent/irrevocable in 2004 

under the City code – there is no genuine issue of material fact that Walker Place either did or 

somehow should have “discovered” such injury outside the limitations period of ORS 12.080(3). 

Accordingly, as to Walker Place’s Third Counterclaim, when viewed as “an action for 

waste or injury to real property,” the claim for damages/injury directly resulting from the 

basement of the Failing Building is timely as a matter of law, and the Court should grant 

summary judgment on Plaintiff’s Seventh Affirmative Defense as to those discrete matters. 

 

IV. Walker Place Is Entitled to Partial Summary Judgment Regarding The 

Relief Sought by Makarios-Oregon, LLC In Its Motion No. 1 Regarding the 

“Severance” Obligations of Plaintiff Under The Failing Lease and Richmond 

Lease. 

Walker Place joins in “Motion No. 1” of Defendant Makarios in the above-captioned 

matter. In support of this joinder – and in keeping with Section 16.02 of the Richmond Lease – 

the 1956 Failing Lease sets forth a corresponding set of requirements regarding the “Severance” 

obligations in this matter: 

“The Lessee [Ross] agrees that, prior to the expiration of this lease or, in the event 

of termination of this lease for any reason whosoever, promptly after such 

termination, it will at its sole cost and expense do and perform such work as 

shall be necessary to physically separate, and constitute entirely independent 

and self-sufficient, the demised premises from the adjacent ‘Richmond 

Building’ premises. Without limiting the generality of the foregoing, such work 

 

61 Goodwin v. Kingsmen Plastering, Inc., 267 Or App 506, 509, 340 P.3d 169 (2014) 

(Expounding ORS 12.080(3): “With a discovery rule, the period of limitations would be deemed 

to commence upon either the date that plaintiff actually discovered the injury or the date that a 

person exercising reasonable care should have discovered the injury.”) (emphasis supplied). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 26 of 31
Page 19 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

shall include: removal of the escalators and the closing in of the openings in the 

floors and walls of the Failing Building which accommodate the same; 

construction of footings and masonry curtain walls along the easterly boundary 

line of the demised premises; and such appropriate alterations, changes and 

relocations of portions of the plumbing, electric, and other systems and 

apparatuses as may be necessary to make the ‘Failing Building’ space 

independent of the ‘Richmond Building’. The material used in said work shall 

conform to the material of said Failing Building, and the work shall be done in a 

good and workmanlike manner.”62 

Without unnecessarily repeating the argument from the Makarios brief, it is clear that 

Plaintiff’s separation “plans” makes no attempt to “physically separate” the Failing Building 

“from the adjacent ‘Richmond Building’ premises,” and which – similar to the Richmond Lease 

– requires the “construction of footings and masonry curtain walls along the easterly boundary 

line demised premises” as excerpted above. 

 Indeed, Plaintiff’s “plans” for metal stud “partition walls” resting on the existing shared 

floors of the two buildings are not remotely equivalent to a masonry “curtain wall,” which 

necessarily encompasses an exterior skin for the Failing Building, and is required to render it 

“entirely independent and self-sufficient” from the Richmond Building.63 

 In an attempt to avoid these unambiguous “severance” obligations, Plaintiff will very 

likely seek to argue that the 1946 Failing Lease between Newberry and the prior Failing Building 

ownership somehow changes the analysis by stating the Richmond Building was described (in 

that prior document 10 years earlier) to be constructed in a way that “partition walls” could be 

added between it and the Failing Building so the Richmond Building could be used as a “selfcontained” building as regards to certain systems. 

 

62 Pitt Decl., Ex. G – 1956 Failing Lease, Pg. 3, “Severance.” (emphasis supplied). 

63 As noted by Makarios, in order to construct a “curtain wall,” the concrete floors and steel 

beams that span the Richmond and Failing Building structures need to be cut away from each 

other. The escalator framing that crosses the property lines on the first and second floors 

likewise must be cut to “physically separate” the two buildings. Under Plaintiff’s “plans” there is 

no question that the Failing Building and Richmond Building would continue to be “physically 

dependent” in perpetuity, in clear violation of the Failing Lease. 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 27 of 31
Page 20 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

 Lest there be any continuing doubt as to which document(s) control the disposition of this 

discrete matter, the 1996 Amendment to the Failing Lease unambiguously affirms the 1956 

Failing Lease controls, providing in relevant part: 

“D. Lessee represents and warrants that it has succeeded to all right, title and 

interest of Lessee’s predecessor in and to the Lease and has assumed the 

obligations of Lessee thereunder, including specifically, but not by way of 

limitation, the obligation to physically separate and restore the premises at the 

expiration or termination of the Lease, as described in the paragraph entitled 

‘Severance’ on page 3 of the August 31, 1956 amendment and restatement of 

the Lease.”64

Contrary to Plaintiff’s anticipated assertions, the parties’ “intent” regarding the import of 

the Failing 1956 Lease alone – as well as corresponding 1956 Richmond Lease65 – is beyond 

dispute, which documents clearly control what is now required to comply with Plaintiff’s end-oflease “severance” obligations regarding these two buildings.66

If, as Plaintiff urges, the 1946 Failing Lease is evidence that the buildings were to be 

separated with “partition walls” so the building systems were “self-contained,” then Newberry 

could have simply repeated the language from the 1946 Failing Lease in the applicable 

“Severance” section of the 1956 Failing Lease. It did not do so, however. Rather, the parties 

crafted a very different obligation above. 

First, it is particularly instructive here when, in 1996, as part of the parties’ agreement to 

allow Plaintiff to directly “assume” the then existing obligations of Newberry, including the end-

 

64 Pitt Decl., Ex. F – 1996 Sixth Amendment, Pg. 1, Recital D. (emphasis supplied). 

65 The Court should note that Plaintiff, having submitted a single “plan” to the City in 

October of 2015, recognizes that, as a practical and legal matter, it must comply with the 

corresponding obligations of both the Failing Lease and Richmond Lease in effecting a 

separation of these two buildings. (Pitt Decl., Ex. E, Pgs. 3 and 4 (Bowles Dep., 226:22-25-

227:1-15)). 

66 ORS 42.300 (“Except for the recital of the consideration, the truth of the facts recited 

from the recital in the written instrument shall not be denied by the parties thereto, their 

representatives or successors in interest by subsequent title.”). 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 28 of 31
Page 21 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

of-lease “severance” obligations of Newberry, the parties were exceedingly clear to expressly 

“call out” the controlling provisions from the 1956 Failing Lease. Second, the 1946 Failing 

Lease, which was executed 10 years earlier, under very different circumstances, cannot be used 

to contradict the plain meaning of the 1956 Failing Lease. Third, to the extent the 1946 Failing 

Lease provides any evidence of Newberry’s earlier intent regarding this matter, it clarifies that 

Newberry might have tried to bargain for the work Plaintiff now proposes under the “Severance” 

section of the 1956 Failing Lease, but did not succeed. 

 In the final analysis, the Court should simply require Plaintiff to comply with the plain 

meaning of the 1956 Failing Lease, which requires Plaintiff to render the Failing Building 

capable of standing on its own, along with an exterior “masonry curtain wall with footings” at 

the termination of the Failing Lease. 

Conclusion 

For the preceding reasons, the Court should grant partial summary judgment as to the 

matters identified above. 

DATED this 1st day of February 2016. 

SLINDE NELSON STANFORD 

By: / s / Keith A. Pitt 

 Keith A. Pitt, OSB No. 973725 

Of Attorneys for Walker Place, LLC 

 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 29 of 31
Page 22 – WALKER PLACE’S SUPPORTING MEMORANDUM OF 

LAW IN SUPPORT OF MOTIONS FOR PARTIAL SUMMARY 

JUDGMENT 

SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

CERTIFICATE OF COMPLIANCE WITH L.R. 7-2(b)(2) 

I certify that this brief complies with the applicable word-count limitation under L.R. 

7-2(b), 26-3(b), 54-1(c), or 54-3(e) because it contains 7,805 words, including headings, 

footnotes, and quotations, but excluding the caption, table of contents, table of authorities, 

signature block, and any certificates of counsel. 

DATED: this 1st day of February 2016. 

SLINDE NELSON STANFORD 

By: / s / Keith A. Pitt 

 Keith A. Pitt, OSB No. 973725 

Of Attorneys for Walker Place, LLC 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 30 of 31
PAGE 1 – CERTIFICATE OF SERVICE SLINDE NELSON STANFORD

111 SW Fifth Avenue, Suite 1940 

Portland, OR 97204 

p. 503.417.7777; f. 503.417.4250 

CERTIFICATE OF SERVICE 

 I hereby certify that I served the foregoing WALKER PLACE LLC’S MOTIONS 

FOR PARTIAL SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF 

LAW on: 

Thomas V. Dulcich 

Rebecca Boyette 

Schwabe Williamson & Wyatt PC 

1211 SW Fifth Avenue, Suite 1900 

Portland, OR 97204 

Tele: 503-222-9981 

Fax: 503-796-2900 

Of Attorneys for Ross Dress For Less, Inc.

Gregory D. Call (Pro Hac Vice)

Tracy E. Reichmuth (Pro Hac Vice)

Crowell & Moring LLP 

275 Battery Street, 23rd Floor 

San Francisco, CA 94111 

Tele: 415-986-2800 

Fax: 415-986-2827 

Of Attorneys for Ross Dress For Less, Inc.

Lisa A. Kaner 

Jeffrey M. Edelson 

Molly K. Honore 

Markowitz Herbold PC 

1211 SW Fifth Avenue, Suite 3000 

Portland, OR 97204-3730 

Tele: 503-295-3085 

Fax: 503-323-9105 

Of Attorneys MAKARIOS-OREGON, LLC

by the following indicated method(s): 

 

 by faxing full, true, and correct copies thereof to said attorney to the fax number noted 

above, which is the last known fax number for said attorney, on the date set forth below. 

 by emailing full, true, and correct copies thereof to said attorney to the email address 

noted above, which is the last known email address for said attorney, on the date set forth 

below. 

 by notice of electronic filing using the CM/ECF system. 

 by causing full, true and correct copies thereof to be mailed to the attorney(s) at the 

 attorney(s) last-known office address(es) listed above on the date set forth below. 

DATED: February 1, 2016. SLINDE NELSON STANFORD 

By: / s / Keith A. Pitt 

 Keith A. Pitt, OSB No. 973725 

Of Attorneys for Defendant Walker Place, LLC 

Case 3:14-cv-01971-SI Document 55 Filed 02/01/16 Page 31 of 31