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

NOT FOR PUBLICATION FILED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
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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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