                                                                                                            F11- ED
                                                                                                     0LJ1K OF APPEALS
                                                                                                          DI\ 1ir10! II

                                                                                                               0       AN 9= 3




                                                                                                 2O4—,        1' ri S F 1


                                                                                                                   I    1'
                                                                                                                             T Old




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

CHUCK BABB, an individual,                                                            Y4o. 43934 -4 -II


                                        Appellant,


       V.




REGAL MARINE INDUSTRIES, INC., a                                            UNPUBLISHED OPINION
foreign corporation,




        JOHANSON, J. —                  Chuck Babb purchased a boat manufactured by Regal Marine

Industries, Inc. ( Regal)       from a local boat dealer. Babb, however, was unsatisfied with the boat' s

performance, and he sued Regal on numerous grounds, including violation of Washington' s

Consumer Protection Act ( CPA),' as well as breach of express and implied warranties. The trial


court dismissed Babb' s claims on summary judgment and on reconsideration, and Babb now

appeals.    Because Babb failed to produce evidence that Regal engaged in an actionable unfair or

deceptive.   act,   the trial   court   did   not err   in   dismissing   Babb'   s   CPA   claim.   And because Babb


does not allege any fact, promise; description, sample, or model made by Regal relating to or




 Ch. 19. 86 RCW.
No. 43934 -4 -II



describing any of Regal' s goods, thus creating any express warranties, the trial court did not err

in   dismissing      Babb'   s   breach    of express        warranty        claims.   But because no evidence suggests that


the parties negotiated a waiver of Regal' s implied warranty of merchantability, the trial court

erred   in   dismissing      Babb'     s   breach    of   implied warranty            claim.      Accordingly, we affirm the trial

court' s orders dismissing the CPA and express warranty claims, but we reverse the trial court' s

order dismissing Babb' s implied warranty claim.

                                                                    FACTS


          In 2007, Babb          shopped       for   a new     boat. He researched the boat market and read product


reviews which,            according to Babb,          rated    Regal positively.            Consequently, he visited the Regal

website and claimed              to be impressed            with   Regal'     s advertisements.          He   was   drawn to " Regal' s


commitment           to   excellence"      and   how Regal " strive[ s] to provide exceptional customer service,


Regal is a family business that stands by its products, and the owners have strong Christian

values."       Clerk' s Papers ( CP)           at    119.    Babb viewed approvingly Regal' s self -
                                                                                                   characterization

that it   would "         be honest      and   do    what' s   right "' as     well    as   its   motto "[    w] ith God' s help and a

steadfast      commitment           to     integrity, we will develop a team of exceptional people and

relationships        to   provide exceptional customer satisfaction."                       CP at 119.


             Babb visited a local boat dealership, Powerboats NW, which carried Regal boats, and he

described to the           salesman what        he   sought,       eventually purchasing            a   Regal. The Regal boat had a


Volvo engine.


             Regal    provides     a   limited warranty for its boats.                  The warranty specifies that the dealer

will    repair   or replace       any defective           parts    for   one year      from       delivery.     But the warranty lists




                                                                         2
No. 43934 -4 -II



exceptions not covered:             engines, aftermarket accessories, gelcoat surfaces, damage caused by

user negligence, accident, or misuse,                among     others.   The limited warranty also expressly states,

 REGAL MAKES NO WARRANTY, OTHER THAN CONTAINED HEREIN."                                                        CP at 95.


The Volvo engine had its own warranty.

          Babb jeceived his          new    Regal boat in      July   2007.   According to Babb, when he first used

it, he   noticed   that it " ran    rough"     and   had   a " vibration."    CP   at   120, 352. In October 2007, Babb


first called Regal and spoke with customer .service representative Chuck Rainey, who provided

information to Babb about how Babb could repair the boat himself.

          Over the 2007 to 2008 winter, Babb stored his boat and in spring 2008, his son -in -aw,
                                                                                             l

Shane Hagen, used it. Hagen reported that the boat " repeatedly stalled and had to be towed back

into   shore."     CP   at   120.   Babb phoned Rainey again in July 2008, and Rainey told Babb to take

the boat to CSR Marine,             a repair   shop,   and   to tell them that     Rainey " ok' ed it. " CP at 120.
                                                                                                       Z

          CSR Marine inspected Babb' s boat and informed Babb that the boat' s engine had a small

engine     head    crack     caused    by   freeze damage.         Babb phoned Regal again in December 2008,


indicating he needed to repair his boat and that his dealer, Powerboats NW, had gone bankrupt.
He spoke with Regal Manager of Customer Service, Mark Skrzypek, and explained the cracked

engine     head.        Skrzypek informed Babb that the cracked engine was caused by improper

winterization, not a manufacturing defect. Skrzypek also told Babb that Regal' s warranty did not

cover the Volvo engine.




2 In 2008, Babb also complained of a cracked aftermarket wakeboarding tower on his boat;
 Rainey ordered a new tower for Babb' s boat and shipped it to him.
                                                                  3
No. 43934 -4 -II



          Babb was dissatisfied when Skrzypek advised him that Regal would not cover the engine


repairs, so he sued Regal on numerous grounds, including a CPA violation, and breach of
                                                                    3
express and    implied        warranties,        among    others.       Regarding the CPA claim, Babb contended that

Regal engaged in unfair or deceptive acts because Regal claimed to " stand behind their product,"

have "    exceptional"        customer         service,   and   to have      pride   in   being family   owned.   CP at 110.


Regarding     express         warranties,            Babb claimed that Regal made promises in its advertising

materials that it failed to satisfy, including touting its customer service satisfaction and product

quality    awards,      as       well     as   advertising its " first -
                                                                       class         reputation."   And regarding implied

warranties, Babb claimed that he never waived any implied, warranties and that Regal is liable

because he "      never received a warranty packet that specifically identifies his boat and the

coverage    he is   entitled       to."    CP at 115.


          Regal filed        a   summary judgment           motion.         The trial court granted summary judgment to

Regal on the CPA claim, reasoning that Regal did not engage in unfair or deceptive actions. The

trial court did not immediately grant summary judgment on the warranty issue because in

viewing the evidence most favorably to Babb, it was unclear what caused the boat' s vibration,
       it may have been                               something for              Regal                      not   the engine.
and                                caused       by                      which              was responsible —




When Babb could not identify evidence in the record tying any of his claims to anything other

than engine problems, the trial court granted Regal summary judgment on Babb' s warranty
claims.     The trial        court noted        that Regal'     s positive " customer satisfaction"       claims were " mere




puffery"    and   did   not give rise           to   an express   warranty.     Report of Proceedings ( Aug. 17, 2012) at

 12. Babb now appeals the trial court' s orders dismissing his CPA and warranty claims.



 3
     Of Babb' s claims, only the CPA and breach of warranty claims are at issue on appeal.

                                                                        M
No. 43934 -4 -II



                                                         ANALYSIS


                                                    SUMMARY JUDGMENT


         We     review   summary judgment             orders      de   novo.    Aba Sheikh v. Choe, 156 Wn.2d 441,


447, 128 P. 3d 574 ( 2006).           Trial courts properly 'grant summary judgment where the pleadings

and affidavits show no genuine issue of material fact. and the moving party is entitled to

judgment       as a matter of       law.    CR 56( c).        Questions of fact may be determined on summary

judgment as a matter of law only where reasonable minds could reach but one conclusion.

                                                                   App. 687,      692, 929 P. 2d 1182 ( 1997).          When
Alexander      v.   County    of Walla Walla, 84 Wn.


reviewing a grant of summary judgment, we consider solely the issues and evidence the parties

called to the trial court' s attention on the motion for summary judgment. RAP 9. 12.

                                            A. CONSUMER PROTECTION ACT


         Babb first argues that the trial court erred in granting Regal summary judgment on

Babb' s CPA claim because genuine issues of material fact exist regarding whether Regal failed

to   provide   Babb    with   the   service   it   claims   is   paramount     to its   success.   We affirm because Babb


fails to establish that Regal' s statements were anything other than unactionable puffery.

         To prevail in a private action brought under the CPA, the plaintiff must establish that ( 1)

the defendant has        engaged     in   an unfair or      deceptive    act or practice, ( 2)     in trade   or commerce, (   3)


that impacts the       public    interest, (   4) the plaintiff has suffered injury in her or his business or

property, and ( 5) a causal link exists between the unfair or deceptive act and the injury suffered.

Leingang       v.   Pierce    County      Med. Bureau, Inc., 131 Wn.2d 133,                   149, 930 P. 2d 288 ( 1997).


Whether a particular action gives rise to a CPA violation is reviewable as a question of law.

Leingang, 131 Wn.2d at 150.



                                                                   5
No. 43934 -4 -II



          Here, Babb argues that Regal engaged in unfair or deceptive practices when it advertised


that " they [ Regal] stand behind their product, strive for `exceptional' customer service, and pride

themselves       on     being family        owned."     Br.      of     Appellant      at    8.     These statements, however,


constitute mere puffery and do not give rise to an actionable CPA claim.

          General,       subjective, unverifiable        claims        about a product or            service are "   mere puffery"

that    cannot    give    rise      to false advertising   or,    in this       context,     an unfair    or    deceptive   act.   See


Newcal Indus., Inc.            v.   Ikon Office Solution, 513 F. 3d 1038, 1053 ( 9th Cir. 2008), cent. denied,

                               4
557 U. S. 903 ( 2009).


          Babb, however, fails to demonstrate that any of these statements were more than general,

subjective,      vague statements about Regal' s service that one ' cannot simply test to verify.


Accordingly,         these statements        were " mere    puffery,"           and   they   are not actionable.       See Newcal


Indus., 513 F.3d          at     1053.    For   example,   Babb             cannot prove     that Regal     does   not " strive"   for


exceptional customer service or " pride                themselves"             on   being family      owned.     Nor can he prove


that Regal       does    not " stand     behind" its   products and service.                These subjective statements, mere


puffery,     are not     actionable:      So as a matter of law, Babb failed to establish a CPA claim and the

trial   court    did   not err      in granting Regal summary judgment                      on    this issue.   See Leingang, 131

Wn.2d at 149 -50.




4 Our CPA is intended to complement federal laws that purport to regulate the same activities,
here deceptive or fraudulent trade practices. RCW 19. 86. 920. Accordingly, in' construing the
CPA, we may find guidance in federal court interpretations of federal statutes regarding
deceptive       or   fraudulent advertising         claims.       Newcal Industries involves the Lanham Act, 15
U. S. C. §    1051 et seq., which regulates false advertising, among other things.

                                                                      Col
No. 43934 -4 -II



                                      B. BREACH OF WARRANTY ACTIONS


         Next, Babb argues that the trial court erred in granting summary judgment because Regal

provided   express    and    implied    warranties     to Babb guaranteeing Babb'      s   satisfaction.       Because


Babb' s express warranty claims all relate to Regal' s statements regarding its service and not its

products, Babb failed to raise a claim related to goods, a requisite for an express warranty claim.

But regarding Babb' s implied warranty claim, the evidence does not demonstrate that the parties

negotiated   to   waive   any implied    warranties, so     any   waiver would   have been invalid. Therefore,


the trial court did not err in granting summary judgment to Regal on Babb' s breach of express

warranty claims, but it improperly granted summary judgment to Regal on Babb' s implied

warranty claim.


                                              1.   EXPRESS WARRANTIES


         Babb      asserts   that    Regal'   s    advertising    statements   constituted    express         warranties




guaranteeing that Babb would be satisfied with his Regal boat.

         Express warranties are any affirmation of fact or promise, any description, or any sample

or model by a seller relating to or describing the goods when such representation forms the basis

of   the bargain.    RCW 62A.2 -313.          Here, Babb does not recount any fact, promise, description,

sample, or model made by Regal relating to or describing any of Regal' s goods. Instead, he cites

Regal' s stated commitment to customer service and integrity, and its status as a family business

with   Christian    values   that   stands   behind its   products.   Babb also quotes from Regal' s mission,


  With God' s help and a steadfast commitment to integrity, we will develop a team of exceptional

people    and relationships     to   provide       exceptional customer satisfaction."       CP   at   119.     None of




                                                             7
No. 43934 -4 -II



these representations guarantee anything about Regal' s products, their quality, or craftsmanship.

Accordingly, Babb has failed to set out a prima facie breach of express warranty claim, and the

trial   court   did   not err    in granting summary judgment to Regal                      on   this   claim.'    See RCW 62A.2-


313 ( Express warranties are any affirmation of fact or promise, any description, or any sample or

model by a seller relating to or describing the goods.).

                                                      2. IMPLIED WARRANTIES


          Regarding implied warranties, Babb contends that Regal guaranteed a " seaworthy boat in
proper     working           condition."       Br.    of    Appellant       at   22.    He claims that Regal implied these


warranties in its advertising statements.

          Unless excluded or modified, a warranty that goods are merchantable is implied in a

contract for their sale, so long as the seller is a merchant with respect to goods of that kind.

RCW 62A.2 -314; Tex Enters., Inc.                      v.   Brockway        Standard, Inc., 149 Wn.2d 204, 208, 66 P. 3d


625 ( 2003).          This implied warranty of merchantability assures that the goods are fit for the

                purposes       for   which     such   goods     are   used.        RCW 62A. 2- 314( 2)(      c);   Tex Enters., 149
ordinary


Wn.2d      at    208.        Similarly, unless excluded or modified, an implied warranty of fitness for a




   Babb     cited     cases     to    support   his    express    warranties           claim.    Each of these cases, however,
involved        a    defendant'       s   representations      regarding its           products.    See Touchet Valley Grain
 Growers, Inc.          v.   Opp &        Seibold Gen. Constr., Inc., 119 Wn.2d 334, 348, 831 P. 2d 724 ( 1992)
 builder' s                         made and of highest quality "); Travis v. Wash. Horse Breeders
                          be tailor -
                 products " will

Ass'  n, Inc., 111 Wn.2d 396, 404, 759 P. 2d 418 ( 1988) ( horse breeder' s horses were " healthy and
 fit for racing and breeding purposes "); Urban Dev., Inc. v. Evergreen Bldg. Prods., LLC, 114
 Wn. App. 639, 643, 59 P. 3d 112 ( 2002) ( brochures advertised the company' s " exterior insulation
                                                                                                        Thus, these cases do not
 and    finish      system "),       aff'd, 151 Wn.2d 534, 90 P. 3d 1062 ( 2004).
 support Babb' s claim.


                                                                        8
No. 43934 -4 -II



particular purpose arises where the seller at the time of contracting has reason to know any

particular purpose for which the goods are required and that the buyer is relying on the seller' s

skill or   judgment to     select or    furnish     suitable goods.     RCW 62A.2 -315; Tex Enters., 149 Wn.2d


at   208 -09.   And in order to waive implied warranties in the sale of consumer goods, the parties


must specifically negotiate for the waiver and the waiver must state, with particularity, the

qualities and characteristics          that   are not warranted.       RCW 62A.2 -316; Thomas v. Ruddell Lease -


Sales, Inc., 43 Wn. App. 208, 213, 716 P. 2d 91.1 ( 1986).

           Here, Regal expressly         excluded all    implied    warranties     in its limited warranty: " REGAL


MAKES NO WARRANTY, OTHER THAN CONTAINED HEREIN; TO THE EXTENT


ALLOWED BY LAW ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A

PARTICULAR PURPOSE ARISING IN STATE LAW ARE EXPRESSLY EXCLUDED TO

THE EXTENT ALLOWED BY LAW."'                            CP at 95.


           But the   record     does    not   demonstrate that the       parties   negotiated      this   waiver.   Because



there is no evidence of negotiation, by statute, the waiver is invalid. See RCW 62A.2 -316. And

viewing the facts in a light most favorable to the nonmoving party, here Babb, we hold that
Regal, as a boat manufacturer, offered an implied warranty of merchantability that its boats

would      function properly.      Babb offers evidence that his boat never worked right, creating an

issue    of material    fact   whether    his   new    Regal boat      ever   functioned properly.        Accordingly, the

trial court improperly granted summary judgment dismissing Babb' s implied warranty claim.



 6 Regal also cites its sales invoice, which included an implied warranties section, stating that the
 dealer made no warranty to any parts unless warranted by the manufacturer or implied in writing.
 This " IMPLIED WARRANTY NEGOTIATION" section on the sales invoice, however, had its
 own signature       lines,   which neither      Babb   nor    Regal   signed..   CP   at   50.   Though Babb and Regal
 signed     the    sales      invoice     itself,    neither    party     signed    the "     IMPLIED        WARRANTY
 NEGOTIATION,"             therefore Babb did not waive the implied warranty.
                                                                9
No. 43934 -4 -II



        We affirm the trial court' s orders dismissing Babb' s CPA and express warranty claims.

We reverse the trial court' s order dismissing Babb' s implied warranty claim.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.

                                                                                  0.




                                                      HANSON, J.




                                                 10
