                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LACEY MARKETPLACE ASSOCIATES                     No.   15-35571
II LLC, a Washington limited liability
company and BURLINGTON RETAIL,                   D.C. No. 2:13-cv-00383-JLR
LLC, a Washington limited liability
company,
                                                 MEMORANDUM*
              Plaintiffs-Appellees,

 v.

UNITED FARMERS OF ALBERTA
COOPERATIVE LIMITED, a foreign
association,

              Defendant-Appellant,

SPORTSMAN’S WAREHOUSE, INC.,

              Defendant-Appellee.



LACEY MARKETPLACE ASSOCIATES                     No.   15-35658
II LLC, a Washington limited liability
company and BURLINGTON RETAIL,                   D.C. No. 2:13-cv-00383-JLR
LLC, a Washington limited liability
company,

              Plaintiffs-Appellants,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 7

 v.

UNITED FARMERS OF ALBERTA
COOPERATIVE LIMITED, a foreign
association; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                      Argued and Submitted December 5, 2017
                               Seattle, Washington

Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.

      1. United Farmers of Alberta Cooperative Limited (UFA) waived its right to

challenge the district court’s grant of summary judgment to Sportsman’s

Warehouse (Sportsman’s) on the tortious interference claim. Arguments that a

party failed to raise below are not necessarily waived when, as here, the district

court considered those same arguments below. See Tarabochia v. Adkins, 766 F.3d

1115, 1128 n.12 (9th Cir. 2014). But UFA did not just fail to oppose Sportsman’s

motion for summary judgment. Rather, it made the same arguments in its own

defense that Sportsman’s made in support of its summary judgment motion. UFA

even joined a different part of Sportsman’s motion. UFA cannot reverse course

now that it has admitted liability and argue directly against the position it took in
                                                                            Page 3 of 7
the district court. See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1074 n.7 (9th

Cir. 2016). Thus, the grant of summary judgment to Sportsman’s on the tortious

interference claim is affirmed.

      2. The district court erred in granting judgment as a matter of law to

Sportsman’s on the Uniform Fraudulent Transfer Act (UFTA) claim. The jury did

not specify whether it found the transfer at issue to be actually or constructively

fraudulent, or whether it found Sportsman’s liable as a third-party beneficiary of

the transfer between Wholesale and UFA. Because there was a valid legal basis for

finding actual fraud on Sportsman’s part, judgment as a matter of law was

inappropriate regardless of the validity of the legal basis for finding constructive

fraud or liability as a third-party beneficiary. See Fed. R. Civ. P. 50(a)(1); First

Nat’l Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058, 1067–69 (9th Cir. 2011).

      There was sufficiently clear and satisfactory evidence of actual fraud for a

reasonable jury to conclude that Sportsman’s transacted with Wholesale with the

“actual intent to hinder, delay, or defraud” Lacey Marketplace Associates II and

Burlington Retail (the Landlords). Wash. Rev. Code § 19.40.041(1)(a); see

Clayton v. Wilson, 227 P.3d 278, 283 (Wash. 2010). Fraudulent intent can be

established when as few as seven of the eleven enumerated factors that suggest

fraudulent intent are present. See Wash. Rev. Code § 19.40.041(2)(a)–(k);
                                                                          Page 4 of 7
Douglas v. Hill, 199 P.3d 493, 497 (Wash. Ct. App. 2009); see also Clayton, 227

P.3d at 283–84.

      The district court held that only three factors were present. See Wash. Rev.

Code § 19.40.041(2)(e), (i), (j). But, viewing the evidence in the light most

favorable to the Landlords, a reasonable jury could conclude that at least four

additional factors were also present. See First Nat’l Mortg., 631 F.3d at 1067–68.

First, UFA and Wholesale were insiders, and Sportsman’s knew that the Master

Transaction Agreement (MTA) required that its payment to Wholesale would go to

UFA. See Wash. Rev. Code § 19.40.041(2)(a). Second, UFA and Sportsman’s

gave the Landlords late and vague notice of the MTA, which had the effect of

concealing the transfer for a time. See Wash. Rev. Code § 19.40.041(2)(c). Third,

litigation was pending by the time the MTA closed and Sportsman’s transacted

with Wholesale. See Wash. Rev. Code § 19.40.041(2)(d); Clayton, 227 P.3d at

284. Finally, Sportsman’s helped design the transaction so that Wholesale’s assets

would be removed from the Landlords’ reach. See Wash. Rev. Code

§ 19.40.041(2)(g).

      This evidence was sufficient to support a finding of actual fraud, so we

reverse the district court’s grant of judgment as a matter of law on the UFTA claim

against Sportsman’s. Because no party challenged the district court’s conditional
                                                                             Page 5 of 7
grant of a new trial to Sportsman’s on the UFTA claim, we leave that alternative

ruling undisturbed.

      3. The district court correctly held that the Landlords’ damages for lost rent

and retenanting costs did not need to be offset by the rent the Landlords received

from the replacement tenants. Two principles of Washington law establish that no

such offset would have been appropriate here, whether or not the Landlords

terminated their leases with Wholesale. First, under Washington law, a “defaulting

tenant is not entitled to a credit for the excess rent the landlord receives from a

subsequent tenant toward the unpaid rent owed by the original tenant for the period

of time the property was vacant.” Hargis v. Mel-Mad Corp., 730 P.2d 76, 81

(Wash. Ct. App. 1986). Second, the landlord, and not the defaulting tenant, should

receive any benefit of the tenant’s breach. Id. In light of these principles, the

district court properly denied a “surplus rent” offset because the Landlords

received damages only for the period during which the properties sat vacant.

      4. The district court correctly held that changes in the value of the

Landlords’ properties did not affect the damages owed to the Landlords. The

Washington Supreme Court’s statement that the measure of damages from a breach

of lease is “the difference in the value of the property independent of the lease”

must be viewed in light of the court’s application of that rule. See Family Med.
                                                                            Page 6 of 7
Bldgs., Inc. v. Dep’t of Soc. & Health Servs., 702 P.2d 459, 464 (Wash. 1985). In

Family Medical Buildings, the court permitted the landlord to recover only the lost

rent and retenanting costs without any mention of the property value. Id.; see also

Peyton Bldg., LLC v. Niko’s Gourmet, Inc., 323 P.3d 629, 635 (Wash. Ct. App.

2014). In practice, Washington law does not require breach-of-lease damages to be

calculated with reference to property value. The district court’s denial of a

property value offset is affirmed.

      5. The district court did not abuse its discretion in holding that the

Landlords were not entitled to prejudgment interest. Prejudgment interest is

available only if the tort or contract damages were (1) liquidated or (2)

unliquidated but “determinable by reference to a fixed contractual standard,

without reliance on opinion or discretion.” Forbes v. Am. Bldg. Maint. Co. West,

240 P.3d 790, 793 (Wash. 2010); see State Dep’t of Corr. v. Fluor Daniel, Inc.,

161 P.3d 372, 375 (Wash. 2007) (rule applies to tort and contract damages).

Damages that depend on a jury’s determination of “reasonableness” are not

liquidated, even if calculated from documented expenses. See Scoccolo Constr.,

Inc. v. City of Renton, 145 P.3d 371, 377 (Wash. 2006); Harris v. Drake, 65 P.3d

350, 365 (Wash. Ct. App. 2003). Here, as the jury instructions reflect, the damages

for the breach of contract, tortious interference, and UFTA claims all depended on
                                                                        Page 7 of 7
an exercise of the jury’s discretion, which precludes an award of prejudgment

interest.

       6. The Landlords’ request for judicial notice is DENIED. UFA’s motion to

strike is DENIED as moot.

       AFFIRMED in part, REVERSED in part, and REMANDED.

       The parties shall bear their own costs.
