NOT FOR PUBLICATION FILED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

2 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,

3 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

5 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.

6