NOT FOR PUBLICATION FILED NOV 26 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
W.G. BARR MANAGEMENT, LLC, doing No. 24-5321 business as Two Pitchers Brewing D.C. No. Company, 3:23-cv-02257-TSH Plaintiff - Appellant, MEMORANDUM* v.
CONTEKPRO, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of California Thomas S. Hixson, Magistrate Judge, Presiding
Argued and Submitted October 22, 2025 San Francisco, California
Before: MURGUIA, Chief Judge, FORREST, Circuit Judge, and R. COLLINS, District Judge. **
Appellant W.G. Barr Management, LLC, d/b/a Two Pitchers Brewing
Company (“Two Pitchers”), appeals the district court’s (1) grant of summary
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. judgment in favor of Appellee ContekPro, LLC; (2) denial of attorneys’ fees to
Two Pitchers; and (3) award of attorneys’ fees to ContekPro. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
We review a grant of summary judgment de novo. Wallis v. Princess
Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002). “We determine, viewing the
evidence in the light most favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court correctly applied the
relevant substantive law.” Id. We review a district court’s decision to award
attorneys’ fees for abuse of discretion. Price v. Seydel, 961 F.2d 1470, 1475 (9th
Cir. 1992). Under the abuse of discretion standard, the appellate court will affirm
an award of attorneys’ fees “unless the district court applied the wrong legal
standard or its findings were illogical, implausible, or without support in the
record.” Edmo v. Corizon, Inc., 97 F.4th 1165, 1168 (9th Cir. 2024) (quoting
Gonzalez v. City of Maywood, 729 F.3d 1196, 1201–02 (9th Cir. 2013)). “We
review whether the district court properly interpreted and applied the relevant state
statute, however, de novo.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877,
833 (9th Cir. 2000).
1. The district court did not err when it dismissed Two Pitchers’ action as
untimely. The contract provided that “[a]ny legal action with respect to any
business transaction” must be filed within one year of accrual. The contract is
2 24-5321 governed by Oregon law. Under Oregon law, a cause of action for any breach of
contract for sale “accrues when the breach occurs, regardless of the aggrieved
parties’ knowledge of the breach.” Or. Rev. Stat. § 72.7250(2) (2019). However,
“[i]f independent injuries were caused by independent acts, each act is a separate
breach, and the statute of limitations begins to run separately as to each alleged
breach.” Ass’n of Unit Owners v. Far W. Fed. Bank, 852 P.2d 218, 224 (Or. App.
1993) (citing Alderson v. State, 806 P.2d 142 (Or. App. 1991)).
For the purposes of this appeal, there are two incidents of breach at issue: the
first in late 2020, when it became clear that the container would arrive months after
its estimated delivery date; and the second in April 2021, when the non-
conforming container was delivered. The instant litigation was not initiated until
May 2023, more than a year after either date. Therefore, Two Pitchers can pursue
neither breach.
Two Pitchers suggests we consider ContekPro’s lack of response to the
former’s “claim for the cost of rectifying any issues” with the container as a third
breach. The contract, however, imposes no reciprocal obligation on ContekPro in
the event such a claim is filed. And even if it did, the remedy Two Pitchers seeks—
damages for the cost of rectifying any issues—would not have been caused by
ContekPro’s failure to keep that obligation. See Zehr v. Haugen, 871 P.2d 1006,
1012 (Or. 1994); see also Osmun v. Winters, 35 P. 250, 252 (Or. 1894) (“In an
3 24-5321 ordinary action for breach of contract the amount recovered is limited to the actual
damages caused by the breach.”). Therefore, the district court correctly concluded
that ContekPro’s action was untimely.
2. Likewise, the district court’s denial of Two Pitchers’ request for attorneys’
fees was not an abuse of discretion. The contract provided that ContekPro would
be liable for attorneys’ fees and costs if incurred “due to ContekPro’s breach” of
the terms of the contract. Two Pitchers asserts—without citation to authority—that
an assertion of breach, independent of any legal finding, is enough to justify
awarding attorneys’ fees under the contract. This argument strains credulity. Under
Oregon law, there is no “breach” until a plaintiff successfully proves “that there
was a valid and enforceable contract in existence between the parties and that the
defendant has breached the contract.” See Kornbrodt v. Equitable Tr. Co., 3 P.2d
127, 128 (Or. 1931). Because Two Pitchers’ claim was untimely, it never proved
the existence of a breach. Consequently, while its attorneys’ fees and costs were
incurred “due to” ContekPro’s alleged breach, they were not compensable.
In addition, the attorneys’ fees provision in the contract triggered Oregon
Revised Statutes § 20.096(1) (2020), which provides:
In any action or suit in which a claim is made based on a contract that specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the party that prevails on the claim shall be entitled to reasonable attorney fees in addition to costs and disbursements, without regard to whether the prevailing party is the party specified in the contract . . . .
4 24-5321 Section 20.096(1) has been interpreted broadly by Oregon courts.
“[W]henever a party to a contract that includes an attorney-fee provision brings
‘the kind of action’ that the attorney fee provision contemplates, attorney fees are
available to the prevailing party . . . regardless of who brought the action.” Awbrey
Towers, LLC v. W. Radio Servs., 278 P.3d 44, 51 (Or. App. 2012) (quoting
Steidlmayer v. Salishan Props., Inc., 703 P.2d 282, 283 (Or. App. 1985)). Two
Pitchers argues that § 20.096(1) does not apply, citing Quality Contractors, Inc. v.
Jacobsen, which recognized § 20.096(1) as “appl[ying] only to contractual
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NOT FOR PUBLICATION FILED NOV 26 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
W.G. BARR MANAGEMENT, LLC, doing No. 24-5321 business as Two Pitchers Brewing D.C. No. Company, 3:23-cv-02257-TSH Plaintiff - Appellant, MEMORANDUM* v.
CONTEKPRO, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Northern District of California Thomas S. Hixson, Magistrate Judge, Presiding
Argued and Submitted October 22, 2025 San Francisco, California
Before: MURGUIA, Chief Judge, FORREST, Circuit Judge, and R. COLLINS, District Judge. **
Appellant W.G. Barr Management, LLC, d/b/a Two Pitchers Brewing
Company (“Two Pitchers”), appeals the district court’s (1) grant of summary
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. judgment in favor of Appellee ContekPro, LLC; (2) denial of attorneys’ fees to
Two Pitchers; and (3) award of attorneys’ fees to ContekPro. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
We review a grant of summary judgment de novo. Wallis v. Princess
Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002). “We determine, viewing the
evidence in the light most favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court correctly applied the
relevant substantive law.” Id. We review a district court’s decision to award
attorneys’ fees for abuse of discretion. Price v. Seydel, 961 F.2d 1470, 1475 (9th
Cir. 1992). Under the abuse of discretion standard, the appellate court will affirm
an award of attorneys’ fees “unless the district court applied the wrong legal
standard or its findings were illogical, implausible, or without support in the
record.” Edmo v. Corizon, Inc., 97 F.4th 1165, 1168 (9th Cir. 2024) (quoting
Gonzalez v. City of Maywood, 729 F.3d 1196, 1201–02 (9th Cir. 2013)). “We
review whether the district court properly interpreted and applied the relevant state
statute, however, de novo.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877,
833 (9th Cir. 2000).
1. The district court did not err when it dismissed Two Pitchers’ action as
untimely. The contract provided that “[a]ny legal action with respect to any
business transaction” must be filed within one year of accrual. The contract is
2 24-5321 governed by Oregon law. Under Oregon law, a cause of action for any breach of
contract for sale “accrues when the breach occurs, regardless of the aggrieved
parties’ knowledge of the breach.” Or. Rev. Stat. § 72.7250(2) (2019). However,
“[i]f independent injuries were caused by independent acts, each act is a separate
breach, and the statute of limitations begins to run separately as to each alleged
breach.” Ass’n of Unit Owners v. Far W. Fed. Bank, 852 P.2d 218, 224 (Or. App.
1993) (citing Alderson v. State, 806 P.2d 142 (Or. App. 1991)).
For the purposes of this appeal, there are two incidents of breach at issue: the
first in late 2020, when it became clear that the container would arrive months after
its estimated delivery date; and the second in April 2021, when the non-
conforming container was delivered. The instant litigation was not initiated until
May 2023, more than a year after either date. Therefore, Two Pitchers can pursue
neither breach.
Two Pitchers suggests we consider ContekPro’s lack of response to the
former’s “claim for the cost of rectifying any issues” with the container as a third
breach. The contract, however, imposes no reciprocal obligation on ContekPro in
the event such a claim is filed. And even if it did, the remedy Two Pitchers seeks—
damages for the cost of rectifying any issues—would not have been caused by
ContekPro’s failure to keep that obligation. See Zehr v. Haugen, 871 P.2d 1006,
1012 (Or. 1994); see also Osmun v. Winters, 35 P. 250, 252 (Or. 1894) (“In an
3 24-5321 ordinary action for breach of contract the amount recovered is limited to the actual
damages caused by the breach.”). Therefore, the district court correctly concluded
that ContekPro’s action was untimely.
2. Likewise, the district court’s denial of Two Pitchers’ request for attorneys’
fees was not an abuse of discretion. The contract provided that ContekPro would
be liable for attorneys’ fees and costs if incurred “due to ContekPro’s breach” of
the terms of the contract. Two Pitchers asserts—without citation to authority—that
an assertion of breach, independent of any legal finding, is enough to justify
awarding attorneys’ fees under the contract. This argument strains credulity. Under
Oregon law, there is no “breach” until a plaintiff successfully proves “that there
was a valid and enforceable contract in existence between the parties and that the
defendant has breached the contract.” See Kornbrodt v. Equitable Tr. Co., 3 P.2d
127, 128 (Or. 1931). Because Two Pitchers’ claim was untimely, it never proved
the existence of a breach. Consequently, while its attorneys’ fees and costs were
incurred “due to” ContekPro’s alleged breach, they were not compensable.
In addition, the attorneys’ fees provision in the contract triggered Oregon
Revised Statutes § 20.096(1) (2020), which provides:
In any action or suit in which a claim is made based on a contract that specifically provides that attorney fees and costs incurred to enforce the provisions of the contract shall be awarded to one of the parties, the party that prevails on the claim shall be entitled to reasonable attorney fees in addition to costs and disbursements, without regard to whether the prevailing party is the party specified in the contract . . . .
4 24-5321 Section 20.096(1) has been interpreted broadly by Oregon courts.
“[W]henever a party to a contract that includes an attorney-fee provision brings
‘the kind of action’ that the attorney fee provision contemplates, attorney fees are
available to the prevailing party . . . regardless of who brought the action.” Awbrey
Towers, LLC v. W. Radio Servs., 278 P.3d 44, 51 (Or. App. 2012) (quoting
Steidlmayer v. Salishan Props., Inc., 703 P.2d 282, 283 (Or. App. 1985)). Two
Pitchers argues that § 20.096(1) does not apply, citing Quality Contractors, Inc. v.
Jacobsen, which recognized § 20.096(1) as “appl[ying] only to contractual
provisions awarding attorney fees to the ‘prevailing party’ or its functional
equivalent, not to any contractual clause awarding attorney fees to one of the
parties.” 911 P.2d 1268, 1270 (Or. App. 1996). Because the contract here referred
only to “incur[ring] legal expenses” and “pursu[ing] legal remedies,” Two Pitchers
argues that it need not have prevailed on the merits to be entitled to attorneys’ fees.
But it ignores that Quality Contractors was quick to reject this narrow approach,
explaining that a mere reference to “the party justly entitled” to fees was enough
for § 20.096(1) to attach. Id. at 1271–72. This liberal interpretation of the statute
was subsequently confirmed in Benchmark Northwest, Inc. v. Sambhi, which held
that § 20.096(1) applied to a provision awarding attorneys’ fees in any “suit or
action” that “is tried, heard or decided” by a court. 83 P.3d 348, 349 (Or. App.
2004). It is enough, in other words, for the contract to refer to attorneys’ fees so
5 24-5321 long as it does not include any expression of an intention for those fees to be
awarded on a basis other than whether the party seeking them is a “prevailing
party.” Thus, we conclude that an Oregon court would hold that § 20.096(1)
applies to the attorneys’ fees provision at issue here. Since the prevailing party
statute applies, it automatically precludes Two Pitchers from recovering attorneys’
fees, as it clearly was not the “prevailing party.” See Or. Rev. Stat. § 20.077 (2020)
(“[T]he prevailing party is the party who receives a favorable judgment . . . on the
claim.”).
This analysis also extends to the evaluation of ContekPro’s request for
attorneys’ fees. ContekPro is the prevailing party because the district court granted
its motion for summary judgment. Therefore, the district court appropriately
awarded ContekPro’s motion for attorneys’ fees.
AFFIRMED.
6 24-5321