Robert Blangeres v. United States Seamless, Inc. ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        FEB 23 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ROBERT BLANGERES, individually and              No.    16-35023
    on behalf of all others similarly situated;
    DANELLE BLANGERES, individually and             D.C. No. 2:13-cv-00260-SAB
    on behalf of all others similarly situated,
    Plaintiffs-Appellants,          MEMORANDUM*
    v.
    UNITED STATES SEAMLESS, INC.;
    KAYCAN LIMITED; K.B.P. COIL
    COATERS, INC.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of Washington
    Stanley Allen Bastian, District Judge, Presiding
    Argued and Submitted February 8, 2018
    Seattle, Washington
    Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO,** District
    Judge.
    Plaintiffs-Appellants Robert and Danielle Blangeres appeal the district
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Eduardo C. Robreno, United States District Judge for
    the Eastern District of Pennsylvania, sitting by designation.
    court’s grant of summary judgment on all of their causes of action. We have
    jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and we affirm in part, reverse in part,
    and remand.
    1.    The breach of express warranty claim fails because Appellants did not
    comply with the Limited Warranty’s registration requirement and Appellees did
    not impliedly waive this requirement. Implied waiver requires that a plaintiff show
    “unequivocal acts or conduct [by the defendant] evidencing an intent to waive.”
    Jones v. Best, 
    950 P.2d 1
    , 6 (Wash. 1998). While Appellees did not enforce the
    warranty registration requirement for some other homeowners, their conduct
    towards non-party claimants was not an unequivocal act or conduct evidencing an
    intent to waive the warranty registration requirement for Appellants. Nor is
    Appellees’ conduct towards other homeowners “inconsistent with any other
    intention but to forego that right.” Otis Housing Ass’n, Inc. v. Ha, 
    201 P.3d 309
    ,
    313 (Wash. 2009) (quoting Shoreline Sch. Dist. No. 412 v. Shoreline Ass’n of
    Educ. Office Emps., 
    631 P.2d 996
    , 998 (Wash. Ct. App. 1981)). Instead,
    Appellees did not require registration cards where homeowners provided proof that
    the peeling siding was KBP coil. Appellants did not provide this alternative proof.
    Therefore, this claim fails.
    2.    The statute of limitations for a breach of warranty claim is four years. See
    Wash. Rev. Code § 62A.2-725(1). The statute of limitations begins to accrue upon
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    breach, and breach occurs upon delivery of the warranted good, “except . . . where
    a warranty explicitly extends to future performance.” Id. § 62A.2-725(2). Courts
    interpret this exception very narrowly. See W. Recreational Vehicles, Inc. v. Swift
    Adhesives, Inc., 
    23 F.3d 1547
    , 1550 (9th Cir. 1994). An implied warranty claim,
    by its nature, does not explicitly extend to future performance, and therefore begins
    to accrue upon delivery. See 
    id. at 1550, 1553
    ; Holbrook, Inc. v. Link-Belt Constr.
    Equip. Co., 
    12 P.3d 638
    , 641 n.5 (Wash. Ct. App. 2000). The franchisee delivered
    and installed the siding on Appellants’ home in 1999, and they brought their claim
    in 2013, well after the statute of limitations expired. Therefore, the breach of
    implied warranty claim fails.
    3.    A fraudulent concealment claim requires, in part, that the vendor “has
    knowledge of [a concealed] defect.” Alejandre v. Bull, 
    153 P.3d 864
    , 872 (Wash.
    2007). There must be “actual, subjective knowledge,” but circumstantial evidence
    may suffice. Burbo v. Harley C. Douglass, Inc., 
    106 P.3d 258
    , 266 (Wash. Ct.
    App. 2005). The 1993 letter from U.S. Seamless to KBP creates a triable issue of
    material fact regarding Appellees’ knowledge that their siding would peel and
    crack on customers’ homes of the siding’s defect. In the 1993 letter, U.S.
    Seamless notes that KBP coil quality was “a constant problem,” including
    “[p]eeling problems.” Appellants complain of peeling here. While Appellees
    contend that they believed that KBP resolved the 1993 issue to their satisfaction,
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    the 1993 letter is sufficient circumstantial evidence of knowledge of the coil’s
    peeling to survive summary judgment. We therefore reverse and remand on this
    claim.
    4.       A misrepresentation claim requires, in part, that Appellants relied on a false
    and material fact when purchasing the siding. See W. Coast, Inc. v. Snohomish
    County, 
    48 P.3d 997
    , 206 (Wash. Ct. App. 2002) (listing the elements for
    misrepresentation). Appellants first point to representations about the durability
    and quality of the siding in the “Steel Siding and Accessories” document. But
    Appellants never received this document, and thus could not have relied on its
    representations. They next point to the Lifetime Warranty, which misstates the
    name of the coil manufacturer. There is no evidence that the name of the
    manufacturer was material to Appellants, or that they relied on this statement when
    purchasing the siding because they first read the warranty over thirteen years after
    purchasing the siding. See Ki Sin Kim v. Allstate Ins. Co., 
    223 P.3d 1180
    , 1188–89
    (Wash. Ct. App. 2010) (holding that courts determine materiality from the
    standpoint of the party alleging misrepresentation). This claim fails.
    5.       The negligence and unjust enrichment claims are subsumed by the
    Washington Product Liability Act (WPLA). “The WPLA is the exclusive remedy
    for product liability claims . . . [and] supplants all common law claims or actions
    based on harm caused by a product.” Macias v. Saberhagen Holdings, Inc., 282
    
    4 P.3d 1069
    , 1073 (Wash. 2012). Appellants base their negligence cause of action
    on Appellees’ “designing, manufacturing, advertising, and selling . . . a product
    that is defective and will fail prematurely.” They base their unjust enrichment
    claim on the allegation that they rendered payments for the siding “with the
    expectation that the Siding would perform as represented and warranted.” Because
    both of these claims are product based, the WPLA subsumes them. See Macias,
    282 P.3d at 1073–74; Wash. Water Power Co. v. Graybar Elec. Co., 
    774 P.2d 1199
    , 1204 n.4 (Wash. 1989). Therefore, these claims fail.
    6.    Similar to the fraudulent concealment claim, there is a triable issue of
    material fact on the Consumer Protection Act (CPA) claim. A CPA claim requires
    a plaintiff to show that a defendant engaged in an unfair or deceptive act or
    practice. Williams v. Lifestyle Lift Holdings, Inc., 
    302 P.3d 523
    , 527 (Wash. Ct.
    App. 2013). “A plaintiff need not show the act in question was intended to
    deceive, only that it had the capacity to deceive a substantial portion of the public.”
    Trujillo v. Nw. Tr. Servs., Inc., 
    355 P.3d 1100
    , 1107–08 (Wash. 2015) (quoting
    Panag v. Farmers Ins. Co. of Wash., 
    204 P.3d 885
    , 894 (Wash. 2009)). There is a
    triable issue of material fact regarding Appellants’ knowledge that the siding was
    defective and likely to peel based on the 1993 letter. See Griffith v. Centex Real
    Estate Corp., 
    969 P.2d 486
    , 492 (Wash. Ct. App. 1998) (holding that a seller may
    violate the CPA by failing to disclose material facts “when the facts are known to
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    the seller but not easily discoverable by the buyer”). If Appellees knew that the
    siding was defective, their failure to disclose this defect could constitute a
    deceptive act in violation of the CPA. We therefore reverse and remand on this
    claim.
    Each party shall bear its own costs.
    AFFIRMED in part, REVERSED in part, REMANDED.
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