good morning ladies and gentlemen our first case for this morning will be duncan place owners association against dancer and cooperated and  successive opinions dismissed plaintiffs claims on twelve b one in twelve the six grounds aside for water the remaining claim was the express warranty claim asserted by duncan place the condominium association ultimately the district court granted summary judgment in favor of the defendants on that express warrant to count plaintiffs do not challenge the summary judgment ruling on appeal but rather the rulings dismissing the case on twelve b one in twelve the six grounds there are four independent bases where we believe the district court erred in doing so and i'd be happy to address any particular points your honour's would like to discuss otherwise i would just start at the beginning with the express warranty claims so one of the things that was concerning to me that your opponent raised in their brief is you don't seem to have made this distinction between advertising and written warranties before the district court and it's not even clear to me that that's what the law of the state of washington would support that that the first problem is is just a waiver problem yes your honor and i would say that we did not waive that argument because when we briefed these motions before the district court below we argued the position that there is no reliance requirement we argued the affirmative things that we need to show in support of our express warranty claim under washington law and because we believe that washington law does not apply this awareness component to a standard written express warranty as exists in this case we simply didn't felt that we need to argue a negative we simply said this is what we need to meet to state a claim under washington for breach of express warranty and we have stated that claim but you know that plenty of notice that the district court perhaps didn't spot this this nuance that you're talking about particularly by the time to file these additional statements the position of the individual here your three the fertik of the first two of those position statements yes and in those positions statements we we did note that we were not conceding anything on a legal basis for whether we're just providing the facts that the court had asked us to provide in those positions statements but at the same time those were positions statements theoretically we could have filed a motion to reconsider i suppose on that ground and asked the court to do so but i don't believe there's any precedent stating that a motion to reconsider is necessary in order to appeal a ruling when the terms of what bound to express warranty have been briefed and argued by the parties below but you didn't brief this distinction between express warranties that are included in the contract and advertising representations that's right judge sykes next again because  before the district court issued its ruling where it noted this distinction on the awareness requirement we had briefed what we determined to be again you know i'm repeating myself but our firm what we needed to affirmatively show just stated claim under washington law we didn't believe that awareness was a part of what we needed to show the district court obviously disagreed with us and i think at that point the appropriate course may have been to file a motion to reconsider or may have been to do what we did here and to appeal what washington law distinguishes between reliance and awareness or knowledge for purposes of express warranties and you needed to flag that law for the district court if you want to rest your claim on that law reliance is not required for express warranty knowledge is or arguably is that's the whole pressure point to this argument and you can't have expected the district court ferret all that out and understand what your argument was if you didn't raise it right i know it and my only issue with but that is because again you know we did not believe and still don't believe that there is an awareness requirement that is written expressed warranties so we would have been arguing a negative in my view in other words in addition to arguing what we needed to show in order to state a claim or we would have had to list off all the things that we didn't need to show and we didn't believe that that was necessary in order for us to prevail on the motion to dismiss and to state a claim on twelve b six grounds well i guess what i'm looking at just to be specific this is same thing judge sex is talking about in page fourteen fifteen of your opening brief you're referring to washington cases appropriately and you criticized the judge he said without distinguishing between claims based on a standard written warranty and no awareness requirement other types of statements such as advertisements where there is no want if you use your citing cases you're distinguishing cases on this basis over on page sixteen you do the same thing you're talking about the bomb case where the washington supreme court is looking at statements made in television advertisements and  guess i mean we don't have to stand this point throughout but it but it's a real point of concern yes i understand judge and again i would i would just say that these were issues that the district court raised in its opinion that hadn't hadn't specifically been briefed by the parties and again that's because we didn't feel that it applied to the standard written express warrant to claim that was at issue here let me ask you a different question you don't give much detail at all in your complain about the damage that was experienced i guess you've got claims for common area damage if i'm understanding the briefs properly the individual owners who assigned there ultimately assigned their claims to you you had some damage but i but i don't have any good sense of what what we're talking about do you actually put detail in any place there is well as far as the detail in the complaints there was more detail that was part of the record on summary judgment but that's not part of the record before this court in the complaint we allege damage to common areas that would be in the interest of duncan plays the kind of many misses you write but what happened like at the rugs indisputably the allegation was that there was significant damage to other property aside from the bosses themselves so this is essentially a consequential damages case right you've got a part that fails the hope was i guess  with with those allegedly inferior metal but then you have consequential damages and so we need to see what your theory is that would reach that kind of claim and this is a little unique actually judge would because of the independent tort duty doctor and in washington state which is a bit different from the typical economic loss rule and in the east where the case that size in both of the parties free of so the supreme court case from washington from two thousand and ten the court actually referred to economic loss is a misnomer and it said what you should be looking at is not whether the damages that occur extend out of a contractual relationship first is a tort based relationship the question is does the defendant zero a duty a tort duty to the plaintive that's independent of any of the terms of the contract well i mean you're changing it i guess are two ways of looking at this which is very important for whether you call it independent tour of economic laws there are plenty of contract cases in which there is a warranty and the parties to make it clear that the warranty is going to cover both the placement of the defective product i'll just call it  based measure of recovery then there's the possibility of a tort based measure of recovery and the economic loss doctrine rests on the is sumption that if people are bar ought to allocate the risks of those kinds of harms in the contract not using the tort law which is actually more appropriate for strangers yes so i think you've actually touched on the factual distinction that's key to this case or particular so the warranty first of all the standard expressed written warranty of course is not a bargain between the parties it's a standard warranty that comes with each product that's true of a lot of consumer contracts i think you're opening pandora's box there of course so let's let's not do that let's close the box and move on to something else so what does the contract say for the express warranty it says that the product will be free from defects in materials and workmanship and that the defendant will replace the product free of charge for the lifetime of the product which i guess they did with your one claim to from new york who actually leaves right yes or and she was yes she did she actually got a replacement that also that also failed you know the warranty does not speak to damage to other property in terms of dances not affirmatively take on the duty under the contract to fix any damage to other property that's the independent or duty the dance so the plaintiffs in this case and in the east would case the washington supreme court when units we're going to put dance a you know plumbing fixtures in all of the units and we want you to warrant not just the laws to direct last but the consequential laws you could negotiate at that perhaps but that's not clear to me when the standard written warranty is involved that dan's uses for every faucet that it sells and i don't i don't know you know it's not part of the record whether gans is willing to change those terms whether it would say by somebody else's faucets i don't know but what i do know is that the washington courts said the company's duties to fund defendants have a duty not to create a risk of damage to persons and other property and the washington street court specifically used that word other property that's a recognized tort duty under washington law it's not something that was contemplated in the standard written warranty the dance includes every fosset that it sells that was the independent tort duty that dan's owed under washington law to these  would have existed even if there was never any warranty even if the even if there was no warranty at all involved that duty would still exist in the east would court made that clear that limits your suit to a claim under the washington product liability product related claims whether in negligence strict liability any any product related claim i would say no negligence and strict liability i don't know that i can concede that point on unjust enrichment but if that is the law then enrichment claim isn't doing any independent more cure it's not a separate substantive basis for relief isn't it it is tied in if all the other claims were dismissed the unjust enrichment claim could still stamped it as a substantive basis for liability yes assuming that there was a determination made through the course of that the usual rule is that you you don't have an unjust enrichment claim if there's a contract and there's a contract here of course spoke at the pleading stage there we're at now we can plead in the alternative if it was determined that the that the express would that the contract governed the claim then of course there would be no unjust enrichment p this is not just about alternative pleading if there is a contract which there is here then you can't you don't have an unjust enrichment claim and i'm just enrichment claim is a is an alternative quasi contractual remedy if there is no contract between the parties right but if your claim is governed by an express warranty then you don't have an unjust enrichment claim yes that's true if a contract exists then the  equitable really well you're acknowledging that a contract exists here will be very much even in your own just in richmond claim i think what judge banks is saying is part of the idea of unjust enrichment is that there isn't any contract and so the law has this theory that it would allow recovery under some circumstances but there plainly is a contract here and so unjust enrichment is probably not available as an independent stand alone summary judgment found that the contract is unconscionable it's found that for some reason it shouldn't govern the the parties conduct then that that's why the alternative pleading is permitted at this stage which is a state relegation and if i could i see i've got the first point which relates to the breach of express warranty so so i have a question for you about that i mean it's looking at this i mean it looks like there's of a product that at least there's reason that would survive ruhleben at a minimum that it is not living up to the representation as that were made and so i don't know if you know who gets to sue on this wind you know i understand that maybe why doesn't cover every last bit of damages that they've stated in class a contract law they would be able to replace a dance faucet with a moan faucet that was better or they you know and just get the difference between the price of the one in the price of the other it looks like this condo association you know may have restrooms in the common area or it may have other water fixtures in the common areas so it may not be as extensive a case as the plaintiffs would like to have but what's wrong with the express warranty claim if i can in terms of responding to that let me start with the concept that this is a commodity item and so what you would normally expect is that there would be a u claim for example related to merchantability fitness for a particular purpose something of that nature and you also have in the literature this fawcett is guaranteed for the life of you know the person who owns the condo or something i think i its current deed for the life of the car i think is the original consumer the original consumer right so there's is and a lot of these people count as original consumers not much so so it fails within that period of time we've probably all had the experience of something in your house fails and you look up you say oh good it's still under warranty and so you call and somebody comes and fixes and they don't charge you for it because they fixed it so why isn't that something that at a minimum these people are entitled to there's a there's a fundamental distinction here we in and this is something that the plaintiffs brought out in their pleadings in the motion for summary judgment which is not before you the issue came up of who was the intended beneficiary of the warranty that is the original consumer purchasers that would be the unit owners but also the condo association if there's like a restroom in the main floor or something it may have some common area original they the the problem that the plaintiffs faced in this case is the awareness issue not so much the issue are they a beneficiary of the warranty so you're telling me if i buy a heat a heating unit from my house and i don't bother to sit down and read the warranty materials that come with my furnace then i don't have an express warranty for my furnace no i'm not saying that and that's not really a shocking claim actually who reads that stuff until it goes bad that's a valid point one of the one of the responses that i would make to that point is that you know our day and age with the internet with advertising material that type of thing people are aware of representations that are being made by manufacturers suppliers of products separate and apart from the as the plaintiffs call it the written warranty the standard would no i understand i understand and i'm just worried if it's in the written warranty it's your new washing machine it's your furnace it's the faucet sit you buy if you're redoing your kitchen or something and they say we are warranting this i'll make it simple for five years that's what it says in the booklet not in some internet you know these are the greatest fossils on the planet or anything surely you have a five year warranty whether you're aware that it's in there or not maybe you didn't pay attention and you thought it was two years but you look at it and say oh good it's five years somebody will come replace the fossils are you telling me that there did that's not something that can happen i'm not saying that's not something that can happen what i am saying and i am no to some limiting this just replacing the faucet by the way you know i'm not saying that every other thing you know that goes wrong in the world comes along with it  but your view seems to be so narrow let me say it this way under the washington under the decisions of the washington supreme court i think that the plain language of those decisions is very clear machine stops working tomorrow that i've had only for a year and it's under a five year warranty i'll pretend if i call then the first thing the person should say to me is well did you read the booklet and then if i say no i haven't read the booklet then they say well never mind we're going to charge you you're not under warranty i think that would be dani i think the important thing here but you're saying yes that's what they every every merchant every every repair service  interrogate the consumer about how carefully they've read the express warranty that came with the product the honest answer judge is in reality i don't think that's going to happen i think in reality that does not happen it doesn't happen because the law doesn't require it they would if they could bail out of half of their warranty work and get to charge for it maybe they'd be happy to do that i think that from our perspective there there is you can't isolate to just the breach of warranty in your in your hypothetical with the washing machine you would clearly have a u c c climb because it is a commodity it is merchantable it is something that you purchased so you would not be left without a remedy there is a scheme to how the various remedies interact with each other so in this case sadly in this case the plaintiffs cannot bring  claim because of the expiration of the a political statute of limitations so what's happened here is they're trying to force the us in thinking about how i would present this to the court i referenced the square peg in the round hole what they're trying to do is they're trying to take a claim there should really be a u c c claim and they're trying to make it into a breach of contract claim or a tort claim based claim because they've lost the ability to bring it as a u scenario what you're describing i would say if my washing machine had a problem within the a political warranty period and i did not get satisfaction and i decided to file a lawsuit clearly one of my causes of action ran into here which is what happened with respect to the first amended complaint was the statute of limitations because the complaint basically says that the faucets were installed i believe in two thousand and nine that's my and the lawsuit wasn't filed until i believe march of or february of two thousand and fifteen so what happened is they lost what i would consider to be their their primary cause of action so they're trying to well back on other causes of action that in making it fit into that pattern and i think what's happened is the law that this is the scheme of the law to provide someone with a remedy doesn't fit this situation because of the posture that the case is in years and because it was it was their allegation in the complaint that it was two thousand and nine the installation i don't know that independently that's what's alleged now bronstein and and so that is the problem with all of this one of the things quite frankly that i think is the genesis of how we got to a lot of this argument about the distinction between advertising awareness and not ever ties in awareness is that the case that they're relying that i think the case is distinguishable on the one hand and harmonize of all on the other hand with what the washington supreme court and judge chain in the district court here did because as a threshold matter in that for  touch case the court said they have to washington plaintive was aware of the warranty because as i understand from reading that case the plaintiff was handed a copy of the warranty before the purchase of the of the vehicle so i you know my approach is frankly that there's a lot of dicta in that case and kind of speculation by that judge as to to interpret what the washington supreme court did in the jewish valley grain growers case and i think one of the critical points i tried to make it in my submission is that in that case that judge noted that under the washington supreme court's decision they were dealing with not just a standard written warranty but also advertising marketing things of that nature that's exactly in our case the circumstance in terms of the awareness issue because i believe it's paragraph forty one of the second amended complaint specifically makes the comment that the plaintiffs in terms of express warranty are relying on advertising and marketing website representations as well as the standard written warranty so i do not think that the ford might touch case is really an issue in terms of reversal i think that the the the specific language of the washington supreme court was very clear in saying there has to be unwillingness when you are talking about advertising and other representation but i know what town says is awareness doesn't seem to be particularly clear to me from these washington cases because of just handing somebody a packet of stuff means that they're aware is a matter of law and actually wheat forced people to do that all the time we say well you signed the contract tough luck for you if you didn't read the fine print at the pleading stage isn't this enough to go forward here's the problem with that  shane did was not simply judge shame issued a memorandum opinion and order on june thirtieth of two thousand and sixteen and what he did in there was he raised the issue of awareness and he said to the plaintiffs  tell me if i'm wrong and why why can't at least those two people go forward they alleged awareness it what is not reflected in the pleadings is that at subsequent hearings that was retracted those b apparently there was a language issue they were asian folks and i don't think they understood what was being asked and in essence what happened is that was retracted so there was at the end of the day none of as i recall forty one individual plaintiffs at the condo association actually could say that they had any awareness and judge i have a clear memory of standing there in october of two thousand and sixteen and judge shame saying to the plaintiff's attorney i've tried to give you every chance to give me this information and you haven't done it and that's on the record in the statement and so finally at the end of approximately three months between the june thirtieth order and the october i believe eleventh two thousand and sixteen memorandum order the they could not come up with any information awareness they gave them nothing i that's one way to reconcile these cases that is that is one way to reconcile the cases yes i am not aware of a specific statement by the washington supreme court to that effect but you are correct and the bond case involves both there was a time when it's a direct and then a secondary user correct right and then the order kind of mixes up who is talking about in different parts of the opinion they do and we're trying to get a thread of a rule here what would it be to me i would i would take the position that there doesn't necessarily because some of the decisions i believe the on decision you know also the washington supreme court i don't have to you have to tell us i am going to you know i did see the language in there that and i'm sure you have seen it as well it's as the preview the requirement is relaxed and i think that my speculation of what they are saying my interpretation is that what they're doing is saying it doesn't it's going to sound ridiculous when i said doesn't have to be a strict as you would normally expect in a contractual setting there they're all lao ing for more remote ness for example the i think the television ads that were referenced and i think the case is one factor i think if you were going strict interpretation of that you possibly would not allow for television advertising because there isn't a direct relationship between parties in the signature on a contract that type of thing that's my best and now assist of what the washington's reporter in that regard is trying to say  i think that encapsulates it can i can i tell you exactly the answer's no i mean the problem is it may be important because we do have a chain of titles from the condo owners to the first owner how much you have to plead to show the necessary just to bring yourself within the scope of the warranties whatever they may be is is really the core of the issue that just record has a fairly strict approach to it by asking for these positions statements essentially what your opponents are saying is a matter of law especially they don't need to make that demonstration because they're within the scope of my response to you would be this i think i think there's there's a disconnect in terms of what the plaintiffs are saying because we're at the point now in order to affirm judge chang i don't know that the specific question that you asked needs to be answered because they came back with no awareness they offered no awareness to it in in the position statements so if and so the question is is awareness in this particular legal lineup of people one of the things that the bond in the two said decision would require obviously were governed by washington law here so would district court case which is subsequent to those where it the way i read those cases i think the plain language says there has to be knowledge of the representation and in case i don't think if this was a situation judge where the plaintiffs had come back with some level of awareness some statement that there was some level of awareness you may have to address what exactly constitute sufficient awareness but here i think it is a simpler analysis than that for purposes of affirmation because there is no representation of awareness there are not and and i think that in some respects you might be making law for the washington supreme court if you decided on what was a sufficient level of awareness i don't you know my personal opinion is i don't think you have to get to that to affirm the decision of judge chang because it's it in some respects here it's black and white there's no representation of awareness at all and that's that's the fundamental problem for the plaintiffs in terms of that preacher express warranty claim it's just not there so i see i have about thirty seconds left ramp up i say anything about unjust enrichment if you want is the only thing i would i would say about the unjust enrichment claim not to beat a dead horse but the specific argument that they were raising the scope of the application of rule nine b was not raised in the court below what they argued in the court below was that rule nine b didn't apply at all or if the judge felt it did apply that the applause and get your allegations were adequate in my five seconds left what  i'm sorry if i could interrupt on the washington product liability act it seems to channel all tort claims that are product related into the terms of the act  if we conclude that there is an independent duty here extra contractual for the purposes of the damage to other property that's being alleged in the complaint that's the sole surviving claim i under your analysis you're correct that would be the sole surviving claim i might my response on that would be that i do not believe that there is a independent tort duty as recognized by the washington supreme court i think that what judge chain was was looking at was that this was more the nature of a disappointed commercial expectation because that's certainly part of the claim that there is  system bare bones allegation of damage to other property and that seems to me if i get into the eastwood case if i if i may i i know i'm over my time but to respond to that i don't the problem with the allegations in the complaint is that there really is no allegation of damage to other property it uses phrases like extensive damage but doesn't say to what it doesn't say to prove there's no allegation and that was one of th a pretty strict reading of the complaint surely under federal pleading standards we understand and the extensive damage doesn't make any sense if you're just talking about the replacements cost of a faucet i think that they are required to give some idea as to whether there is damage to other property there that was one of the things that the court below had pointed out in the june thirtieth two thousand and sixteen opinion that there was no detail at all and this was remember this was the second amended complaint so that in the original first amended and obviously a second amendment so i think that goes to address the issue that you raising about that yes your honor thank you in fifteen seconds i'd just like to talk about the unjust enrichment and then get into the express warranty at the district court below we argued that nine b should not apply in the cases that we relied on where the vernon case and the good case in washington which both set forth a bifurcated analysis in terms of striking the fraud allegations looking at the remaining allegations and applying rule eight to those allegations they both dealt with that issue so it was brief before the district court not waived in terms of the express warranty i can see that there seems to be a of a bit of a lack of clarity perhaps and we're all trying to have the temerity to tell the washington supreme court what they were saying but to the extent that there is confusion about this awareness requirement we of fire this question to the washington supreme court and get the answer from the horse's mouth now i don't believe that that's necessary simply because i believe that the analysis that judge chen undertook in the my ford touch case albeit simply persuasive and even albeit picked up because there he did find that the plane of had awareness there it doesn't change what's said and the persuasiveness of his reading of the bought into shape belly cases now and gone the court was specifically dealing with television advertising statements and i think it's pretty clear in this touches on some of the concerns you raised judge what is a hypothetical consumer you know there's a difference between a standard written contract that comes with the product that in the case of terms and conditions say for example would be binding on the consumer even if that consumer never seen it versus statements that are made in other advertisements in other media that the purchaser may never have seen may know nothing about may not be part therefore of the basis of the bargain it's presumed that a standard written warranty is part of the basis of the bargain under water the law and under the u c c in many states so in bonn when the court was looking at television advertising statements it said was there an awareness of the statement to make them part of the basis of the park in the current case that mr lieberman and it was the same analysis it was a horrible statement made by a dealer i think i don't know exactly was oral statement that was made by a representative the defendant did this become part of the basis of the park  was the question the standard written warranty is a part of the bargain and into shape valley when it was siting to ball on it looked at two different bases for express warranty in that case there were advertising statements that were made and there the washington supreme court cited to ball on and discussed awareness and then in a separate section it discussed a product brochure that was referred to as i believe standard limited warranty or standard warranty and it did not discuss the awareness requirement there this was c claims that are time barred well no because it would still be a breach of the breach of warranty claim that has the six year statute of limitations that we met in two i think mr leaver was referring to you know the u c c claims including the implied we're outside of the statute of limitation and they have waived that possible so yes but i would say that they're the breach of warranty claim is timely and well stated and again there hasn't been an argument that it's not there's simply been the argument that there are unable to sta a claim until the six grounds which i did they disagree with because of my reading and you know judge chance reading essentially of what those washington supreme court cases say but quickly i know i have thirty seconds before even looking at this question of this judicially imposed awareness requirement that we don't believe exists in this case we have a standard written contract here that is unquestionably no one disputes that the intended beneficiaries of the warranty  the original consumer purchasers here in that warranty dan's expressed its independence its free will its choice to have this warranty extend to the exact plaintiffs that we have in this case that's a basic interpretation of contract law it's it's meeting the expectations and the intentions of the parties so it's my understanding of what you go over a minute because i let mr labor go over but it's my understanding that dance has always stood behind the promise to replace that what it did with phyllis sr what what this case is all about isn't just getting a new faucet and hose this case is about covering other damage that occurred when the hose faile it's about yes it is about more than that but dance is also not replaced the faucets in the docking place building and it said that's what it's pacifically says it will do under the warranty when you get this case only about the duncan place building in washington state i had the impression that you were trying to bring a nationwide consumer class action yesterday absolutely it is a consumer class action but the specific points that we're looking at for the dismissal dealing with the facts relevant to the tomato plants all right well thank you very much thank you suppose council will take the