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March 11, 2026 Get Citation Alerts Download PDF Add Note

Shibahara v. State of Oregon

Court of Appeals of Oregon

• Citations: 347 Or. App. 551
• Docket Number: A182971
• Judges: Ortega

• Disposition: Affirmed.

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Affirmed.

Combined Opinion

                        by [Darleen Ortega](https://www.courtlistener.com/person/8195/darleen-ortega/)

No. 174 March 11, 2026 551

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

Elizabeth Kristjana SHIBAHARA,
Plaintiff-Appellant,
v.
STATE OF OREGON,
Department of Human Services, Child Welfare,
Defendant-Respondent.
Marion County Circuit Court
23CV29091; A182971

Daniel J. Wren, Judge.
Submitted January 6, 2025.
Elizabeth Shibahara filed the briefs pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Denise G. Fjordbeck, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
ORTEGA, P. J.
Affirmed.

• Lagesen, Chief Judge, vice Mooney, Senior Judge. 552 Shibahara v. State of Oregon

ORTEGA, P. J.
Petitioner appeals from an order granting sum-
mary judgment to the state on the grounds that her petition
for judicial review of an order in other than contested case
was untimely. Appearing pro se on appeal, petitioner raises
six assignments of error. As an initial matter, we reject peti-
tioner’s fourth assignment as irrelevant because whether
the state filed a timely answer to the petition for review was
not at issue in the motion for summary judgment.1 In her
sixth assignment of error, petitioner asserts that the trial
court abused its discretion in not requiring a declarant to
testify as to the meaning of the term “mailed.” All of peti-
tioner’s other assignments challenge the trial court’s grant
of summary judgment to the state on the grounds that her
petition was untimely. Because petitioner failed to establish
a material issue of fact as to the date the order was mailed,
and, thus, the timeliness of her petition, we affirm.
We write to address those assignments of error.
Petitioner sought review of an order of Child Welfare Services
(“the agency”) finding that there was reasonable cause to
believe that she physically abused her grandson, which was
mailed to her with a letter from the agency dated May 18,
2023. Her petition, which was required to be filed within 60
days after the order was served under ORS 183.484(2), was
filed on July 20, 2023. The statute defines the date of ser-
vice as “the date on which the agency delivered or mailed its
order * * *.” ORS 183.484(2).
The agency moved for summary judgment dis-
missing the petition for lack of jurisdiction, arguing that
it was filed more than 60 days after service of the order.
It supported its motion with a declaration from an agency
employee, Erica Tackman, testifying that she deposited
the order in the mail on May 19, 2023. The declaration was
accompanied by a certified mail receipt bearing that date.

1
Regardless, the state’s notice of intent to appear pursuant to ORCP 69 B
was timely. Petitioner failed to meet the manner of service requirements of ORCP
7 D(3)(g) by mailing the petition rather than leaving true copies at the Attorney
General’s office. Even assuming the service was proper, the state filed its notice
of intent to appear within the 30-day limit, given that the state was not served
until July 24, 2023. See ORCP 7 D(2)(d)(ii).
Cite as 347 Or App 551 (2026) 553

The petition was not filed until July 20, 2023, more than 60
days later.
As she did below, petitioner makes several attempts
to raise a material issue of fact as to when the order was
mailed. She argues first that the envelope she received is dated
May 22 and had a Pitney Bowes meter stamp rather than
a postmark, and second, that the document was not mailed
under the legal definition until the date that appears on the
envelope received by petitioner. Petitioner also challenges the
trial court’s interpretation of the case law holding that “when
an agency serves a final order in other than contested case
by mail, the date on which the order is deposited in the mail
is the date of service and, therefore, the date from which the
60 days runs.” V. G. v. Dept. of Human Services, 302 Or App
804, 806, 461 P3d 1104, rev den, 366 Or 760 (2020). Petitioner
asserts that the trial court should have required Tackman to
testify to the meaning she assigned to the term “mailed” in
her declaration. To support her positions, petitioner proffers
a theory that the mail was locked in the agency’s facilities
over the weekend and, as a result, could not have been mailed
on May 19. None of petitioner’s arguments create a genuine
issue of material fact on this record.
We review an order granting summary judgment for
errors of law, “determining whether the summary judgment
record shows that there are no genuine issues of material
fact and that [the moving] party was entitled to judgment as
a matter of law.” Horsefly Irrigation/Langell Valley v. DEQ,
344 Or App 23, 33, 580 P3d 874 (2025) (citing Fort Klamath
Critical Habitat Landowners, Inc. v. Woodcock, 334 Or App
509, 519, 557 P3d 543 (2024)). No genuine issue of mate-
rial fact exists “where no objectively reasonable juror could
return a verdict for the adverse party on the matter that
is the subject of the motion for summary judgment.” Hayes
Oyster Co. v. DEQ, 316 Or App 186, 193 (2021), rev den, 369
Or 507 (2022). When evaluating the evidence presented by
both parties, “an adverse party cannot create a genuine
issue of material fact by relying on the flat disbelief of pre-
sented testimony to establish an alternate version of what
transpired.” Id. at 194 (internal quotation marks and cita-
tions omitted).
554 Shibahara v. State of Oregon

Petitioner failed to establish a genuine issue of
material fact as to the date the order was placed in the mail.
“Under ORS 183.484, when an agency serves a final order
in other than a contested case by mail, the date on which
the order is deposited in the mail is the date of service and,
therefore, the date from which the 60 days runs.” V. G., 302
Or App at 806. While we recognize that the only date that
appears on the envelope that petitioner received is May 222
and that the tracking information reflects that Portland’s
United States Postal Service facility did not receive it until
May 23, those facts do not refute Tackman’s sworn declara-
tion and receipt stating that she placed the order in the mail
on May 19. As our case law clearly states, the date on which
the order is deposited in the mail is the date of service. Thus,
the trial court correctly granted summary judgment.
We also conclude that the trial court did not abuse
its discretion by refusing to order Tackman to testify to what
definition she gave the term “mailed” in her declaration. To
refute a summary judgment motion supported by a decla-
ration, petitioner “may not rest on the mere allegations or
denials of that party’s pleading; rather, the adverse party’s
response, by affidavits, declarations, or as otherwise pro-
vided in this section, must set forth specific facts showing
that there is a genuine issue as to any material fact for trial.”
ORCP 47 D. Petitioner did not adequately show that the dec-
laration was ambiguous as to the definition of “mailed” such
that the trial court should have required Tackman to clarify
her sworn declaration. The trial court did not abuse its dis-
cretion in ruling on the evidence presented at the summary
judgment hearing.
Affirmed.

2
Whether the visible date on the envelope is a meter stamp instead of a post-
mark is irrelevant to this appeal. Neither date contradicts the sworn declaration
of Tackman that she placed the order in the mail on May 19. To the extent that
petitioner argues for the first time on appeal that the state’s service was inade-
quate because it was not postmarked, that argument is unpreserved, and we do
not address it.