                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 09 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANTHONY and GLADYS                               No. 10-35922
FLEETWOOD, husband and wife; et al.,
                                                 D.C. No. 2:09-cv-00152-LRS
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

STANLEY STEEMER
INTERNATIONAL,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                        Argued and Submitted July 15, 2011
                               Seattle, Washington

Before: GILMAN,** CLIFTON, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               The Honorable Ronald Lee Gilman, Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
1.    The district court did not err in granting summary judgment to Stanley

Steemer International on Appellants’1 claim that Stanley Steemer breached the

implied duty of good faith and fair dealing with regard to its contractual duty to

provide advice, counseling, and management assistance. The covenant of good

faith cannot override the express terms of the parties’ agreement. It does not

“obligate a party to accept a material change in the terms . . . [n]or does it inject

substantive terms into the parties’ contract.” Badgett v. Sec. State Bank, 807 P.2d

356, 360 (Wash. 1991) (internal quotation marks and citations omitted). At most,

Appellants have evidenced only that the advice Stanley Steemer provided was

unsound. See In re Sizzler Rests. Int’l, Inc., 225 B.R. 466, 474-76 (Bankr. C.D.

Cal. 1998) (“actual dishonesty” or actions outside accepted commercial practices

required to show bad faith). The franchise agreement expressly acknowledged that

there were risks involved in purchasing a franchise and advised Appellants to seek

outside advice. There is no evidence in the record that Stanley Steemer knew that

Fleetwood’s franchise was “out of control” or “going to have problems.” Because

Appellants have not pointed to any evidence that Stanley Steemer knew that the




      1
       Appellants are Anthony and Gladys Fleetwood, Wolverine, Inc., and Rex
and Lucinda Rozmus.

                                            2
advice it gave was unsound or that it was given for the purpose of causing the

franchises to fail, summary judgment was proper.

2.    Because, as Appellants acknowledge, Washington’s Franchise Investment

Protection Act’s (FIPA) good faith requirement is similar to the duty of an implied

covenant of good faith and fair dealing, the district court did not err in granting

summary judgment to Stanley Steemer on this claim.

3.    A violation of FIPA’s good faith requirement in Revised Code of

Washington § 19.100.180(1) is not an unfair or deceptive practice under the

Consumer Protection Act (CPA). See RCW § 19.100.180(2) (listing “unfair or

deceptive act[s]”) and § 19.100.190(1) (providing that “unfair or deceptive acts . . .

prohibited by RCW 19.100.180” are violations of the CPA). Further, there is no

violation of the CPA, because, as experienced businessmen, Appellants cannot

demonstrate the required public interest. Goodyear Tire & Rubber Co. v.

Whiteman Tire, Inc., 935 P.2d 628, 635 (Wash. Ct. App. 1997).

4.    The district court did not err in granting summary judgment to Stanley

Steemer on Appellants’ fiduciary duty claims, because any fiduciary relationship

was unambiguously disclaimed by the franchise agreement’s express terms. A

franchise relationship is not a traditional fiduciary relationship, Corp v. Atl.

Richfield Co., 860 P.2d 1015, 1022 (Wash. 1993) (en banc), and Appellants have


                                            3
not shown “factual proof” of a fiduciary duty, see Liebergesell v. Evans, 613 P.2d

1170, 1176 (Wash. 1980).

      AFFIRMED.




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