                                                                        FILED
                                                                      OF APPEALS DIV
                                                                 STATE OF ‘7AS:Ir.GTC:!

                                                                2011 JUL 214 AN 8:149


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALL STAR TRUCKING LLC,                   )       No. 75352-5-1
                                         )
                     Appellant,           )      DIVISION ONE
                                          )
                     V.                   )
                                          )
RYDER VEHICLE SALES, LLC, A               )      UNPUBLISHED OPINION
Washington Limited Liability Company,     )
                                          )
                     Respondent.          )      FILED: July 24, 2017
                                          )

       LEACH, J. — All Star Trucking LLC appeals the summary judgment dismissal

of its lawsuit against Ryder Vehicle Sales LLC. Because All Star failed to establish

a genuine issue of material fact as to any of its claims, we affirm.

                                      FACTS

       Gurminder Singh moved to the United States from India in 2013. He formed

All Star, his own long-haul trucking business, the next year.

       On June 25, 2014, Singh visited Ryder's truck dealership in Des Moines to

purchase a Freightliner Columbia tractor truck. Singh had driven this model before

and was confident he wanted to buy it. Though Singh spoke limited English, he

knew that Ryder's sales manager, Muddasir Mirza, spoke both Punjabi and Hindi.

Singh also brought an English-speaking friend to help him.

       Mirza told Singh that Ryder had two Freightliner Columbia trucks for sale.

Singh sat in the driver's seat of one of them, which had 764,881 miles on it. He
No. 75352-5-1/2




turned on the engine and examined the gauges. However, he did not drive the

truck because lilt's no use test-driving if there is no load in it." According to Singh,

Mirza told him that the truck had been "fully inspected and repaired by Ryder before

it reached the lot" and that it was "fine."

       Satisfied, Singh returned to the Ryder dealership two days later, on June

27, 2014, and purchased the truck for $29,149. Singh admitted that he had not

looked at or considering buying any other trucks because "I had heard Ryder's a

good company, they take care of their trucks, and the company is good and their

trucks are good." Ryder provided Singh with a nine-page inspection report. It said

that the truck had been inspected two months earlier and that all components had

passed inspection. The report noted only that the tail lights, visor light, and license

plate lights were dim or burned out.

       Ryder provided a limited express warranty for the truck. Singh signed and

initialed it. The warranty stated,

       Ryder Truck Rental, Inc. ("Ryder") hereby warrants all covered
       components of the Vehicle identified herein against defects in
       material and workmanship for the first 30 days or 10,000
       miles/16,000 kilometers from the Date of Sale, whichever comes
       first.

The warranty identified the covered components as the engine, the transmission,

and the rear axle. The warranty specifically excluded carburetors, spark plugs,

water pumps, hoses, belts, thermostats, engine electronic systems, charge air

coolers,fuel pump seals and electronics, and external cylinder head gasket oil and

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water leaks. The warranty also excluded "ordinary wear and tear." Finally, the

warranty stated, in bold print and capital letters:

       THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER
       EXPRESS OR IMPLIED WARRANTIES,AND RYDER EXPRESSLY
       DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR
       FITNESS FOR ANY PARTICULAR PURPOSE.

       PURCHASER ACKNOWLEDGES THAT THE VEHICLE HAS BEEN
       PREVIOUSLY OWNED, IS USED AND NOT NEW AND, EXCEPT
       FOR THE LIMITED WARRANTY IS PURCHASED "AS IS."

But Singh claims that Mirza told him, "Anything goes wrong, Ryder will fix it."

       Mirza also offered to sell Singh an extended service warranty. It covered

repairs to the engine or transmission for up to a year and cost an additional $5,000.

Singh declined the extended warranty. He stated that he could not afford it. Singh

signed a form stating,

       I hereby decline to purchase the Ryder Road Ready PLUS Service
       Contract Agreement. I understand that I relinquish all right and
       provisions including any future service repair reimbursement that
       may occur outside the 30 day Ryder Used Vehicle Limited Warranty
       certificate agreement.

       Singh testified that he understood that he would be bound by the terms of

the documents he signed. However, he admitted that he did not read them or have

his friend translate them for him.

       Singh drove the truck to his home the day he purchased it. There, he

noticed leakage from the front axle. Ryder instructed Singh to take it to a repair

shop and paid the cost of the repair. Ryder also gave Singh a postpurchase



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No. 75352-5-1/4




inspection form to identify any other problems with the truck. Singh did not identify

any other problems.

       Singh testified that he made six or seven trips hauling cargo to California

and consistently had problems with the truck. The record contains references to

repairs performed by Sacramento Truck Center on July 28, 2014, by Valley

Freightliner on August 19, 2014, and by Pacific Power Products on September 8,

2014. Mirza stated that while the express warranty did not cover any of these

repairs, Ryder paid for the August and September repairs because Singh "his wife,

and others on his behalf called and emailed persistently to the point it was a

material distraction to running the dealership."

       In exchange for the August and September repairs, Singh signed releases

waiving Ryder's further responsibility for the truck. The releases said,

      . . . You understand that Ryder is agreeing to make this payment as
      a one-time business accommodation for you and not because it is
      obligated to do so under the terms of the warranty or otherwise.

      By accepting these terms from Ryder and signing below, you agree
      to waive and release Ryder (and all of its affiliated companies and
      persons)from all further responsibility of any kind with respect to the
      Vehicle and from and against any claims you may have with respect
      to it, whether those claims are now known by you or hereafter
      discovered. You further acknowledge that this waiver and release is
      unconditional, that Ryder has relied upon it in making this
      accommodation, and that your signature below acknowledges your
      agreement and authority to make this agreement.

       On a trip home from California in late September or early October, the truck

began vibrating. According to Singh, Pacific Power Products told him "that the


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No. 75352-5-1/5




engine needed to be rebuilt to finally solve all of the truck's problems." Pacific

Power Products gave Singh an estimate'of approximately $21,000 to rebuild the

engine. Singh has not driven the truck since that time, believing it was not safe to

drive.

         On May 15, 2015, All Star sued Ryder, alleging breach of express warranty,

breach of the implied warranties of merchantability and fitness for a particular

purpose, and violation of the Consumer Protection Act (CPA), chapter 19.86

RCW.1 Ryder moved for summary judgment. The trial court granted Ryder's

motion and dismissed All Star's lawsuit. All Star appeals.

                             STANDARD OF REVIEW

         We review an order granting summary judgment de novo.2 We will affirm

summary judgment when the record shows no genuine issue about any material

fact and the moving party is entitled to judgment as a matter of law.3 "A material

fact is one upon which the outcome of the litigation depends." When reviewing a

summary judgment order, we engage in the same inquiry as the trial court,

considering the facts and all reasonable inferences from the facts in the light most




        All Star also alleged claims for revocation of acceptance and unjust
         1
enrichment, which are not at issue in this appeal.
      2 Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d
1220(2005).
      3 Owen, 153 Wn.2d at 787.
      4 Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963).

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No. 75352-5-1/6




favorable to the nonmoving party.5 We may affirm a trial court's grant of summary

judgment on any basis supported by the record.6

                                   ANALYSIS

      All Star contends that summary judgment was inappropriate because a

reasonable trier of fact could have concluded that the limited express warranty's

disclaimer was unconscionable.

       RCW 62A.2-316 allows a seller to limit or exclude warranties. "Unless the

circumstances indicate otherwise, all implied warranties are excluded by

expressions like 'as is,' with all faults,' or other language which in common

understanding calls the buyer's attention to the exclusion of warranties and makes

plain that there is no implied warranty."7 And

      [w]hen the buyer before entering into the contract has
      examined the goods or the sample or model as fully as he or
      she desired or has refused to examine the goods there is no
      implied warranty with regard to defects which an examination
      ought in the circumstances to have revealed to him or her.[5]

       Washington courts have adopted a totality of the circumstances approach

for deciding the enforceability of a warranty disclaimer in a commercial setting.9


       5 Right-PriceRecreation, LLC v. GonneIls Prairie Cmty. Council, 146 Wn.2d
370, 381, 46 P.3d 789 (2002).
      6 Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wn. App. 479, 485,
269 P.3d 275(2011).
      7 RCW 62A.2-316(3)(a).
      8 RCW 62A.2-316(3)(b).
      9 Puget Sound Fin., LLC v. Unisearch, Inc., 146 Wn.2d 428, 439, 47 P.3d
940 (2002). This contrasts with the two-prong approach applied to warranty
disclaimers in a consumer transaction, which must be both (1)explicitly negotiated
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No. 75352-5-1/7




The nonexclusive factors considered when making this decision include (1) the

conspicuousness of the disclaimer in the agreement,(2)the presence or absence

of negotiation about the disclaimer,(3)the custom and usage of the trade, and (4)

any policy developed between the parties during the course of dealing.10 To

specifically disclaim the implied warranty of merchantability or fitness, the Uniform

Commercial Code also requires that the disclaimer be in writing and

conspicuous.11 Under the totality of the circumstances approach, we presume the

disclaimer is conscionable unless the party challenging it shows otherwise.12

       Here, All Star fails to raise a genuine issue of material fact about the

effectiveness of the limited warranty to disclaim Ryder's liability.        First, the

disclaimer is in writing and conspicuous. The limited warranty was printed on a

single page. The disclaimer is written in bold type and all capital letters at the very

top of the page. And the disclaimer expressly mentions both the implied warranties

of merchantability and fitness. Second, Singh had a reasonable opportunity to

understand and discuss the terms of the disclaimer. Singh had bought trucks

before and knew that documents he signed were binding on him. Though Singh

read and spoke limited English, he brought an English-speaking friend to assist


and (2)set forth with particularity. See, e.g., Berg v. Stromme,79 Wn.2d 184, 196,
484 P.2d 380(1971).
      10 Puget Sound, 146 Wn.2d at 439 (citing Schroeder v. Fageol Motors, Inc.,
86 Wn.2d 256, 259-61, 544 P.2d 20 (1975)).
      11 RCW 62A.2-316(2).
      12 Puget Sound, 146 Wn.2d at 439 (citing Schroeder, 86 Wn.2d at 262).



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No. 75352-5-1/8




him. And Ryder's sales manager spoke Singh's native languages. Moreover,

Singh had the option to purchase additional coverage, which he declined. The

record contains no information about industry custom, and All Star had no prior

course of dealing with Ryder. Thus, the totality of the circumstances supports the

conscionability and enforceability of the warranty disclaimer.

       All Star contends that a court can never grant summary judgment when a

party has raised a claim of unconscionability. He cites RCW 62A.2-302(2), which

provides,"When it is claimed or appears to the court that the contract or any clause

thereof may be unconscionable the parties shall be afforded a reasonable

opportunity to present evidence as to its commercial setting, purpose and effect to

aid the court in making the determination." But a summary judgment hearing gives

a party the reasonable opportunity to present evidence contemplated by this

statute.13 And "unconscionability may be determined on summary judgment if

there is no possibility, or no threshold showing, of unconscionability."14

       Quoting Cox v. Lewiston Grain Growers, Inc.,16 All Star contends that even

if the warranty disclaimer is conscionable, it is unenforceable if it "fails its essential

purpose." "A limitation of remedies fails its essential purpose when the defect is

latent and non-discoverable upon reasonable inspection."16 But Cox involved


        RCW 62A.2-302(1); M.A. Mortenson Co. v. Timberline Software Corp.,
       13
93 Wn. App. 819, 835, 970 P.2d 803(1999).
     14 M.A. Mortenson Co., 93 Wn. App. at 835.
     15 86 Wn. App. 357, 370, 936 P.2d 1191 (1997).
     16 Cox, 86 Wn. App. at 370.

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No. 75352-5-1/9




wheat seed that failed to germinate adequately because it had been treated with

pesticides. The court found that the warranty disclaimer was not enforceable

because the buyer could not have discovered the defect until he planted the

seed.17 Here, however, All Star fails to establish that any alleged problems in the

truck could not have been discovered with reasonable inspection.18

       Finally, All Star asserts the trial court erred in dismissing its CPA claim. To

prevail on a CPA claim, a plaintiff must show (1) an unfair or deceptive act or

practice,(2) occurring in trade or commerce,(3) a public interest impact,(4) injury

to the plaintiff in his or her business or property, and (5) a causal link between the

unfair or deceptive act and the injury.19 "[W]hether a particular action gives rise to

a Consumer Protection Act violation is reviewable as a question of law."29

       All Star asserts only that "[a] reasonable jury could find that Ryder's course

of dealing with All Star from the time of the truck's sale through the parties' last

interaction in October, 2014 was oppressive and heavy-handed, and amounted to

unfair or deceptive acts or practices in trade or commerce." But this general

statement does not prove, nor does the record support, any claim for unfair or



       17 Cox, 86 Wn. App. at 370.
       18 Because All Star fails to establish that Ryder was obligated pursuant to
express or implied warranties to pay for the repairs, we need not address his claim
that the releases were unenforceable for lack of consideration.
       19 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d
778, 780, 719 P.2d 531 (1986).
       20 Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930
P.2d 288(1997).
                                         -9-
No. 75352-5-1/10




deceptive practices here. "Absent adequate, cogent argument and briefing, we

decline to wander through the complexities of the Consumer Protection Act."21

         We affirm the summary judgment dismissal of All Star's lawsuit.




WE CONCUR:



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     •   21Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249
(1989); see also Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996)
("Passing treatment of an issue or lack of reasoned argument is insufficient to merit
judicial consideration.").

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