Torch v. Windsor Surry Company et al

Filing 76

OPINION AND ORDER: Defendants' motion to dismiss plaintiffs' amended complaint 47 is GRANTED in all respects except for the claims regarding breach of the ten-year adhesive warranty. Defendants' motion to strike 48 is DENIED. Plaintiffs' motion to consolidate this action with Case No. 6:17-cv-01868-SI 51 is GRANTED. Signed on 12/9/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ROBERT TORCH and JESUS GOlvlEZ,
individually and on behalf of all others
similarly situated,

Case No. 3:17-cv-00918-AA
OPINION AND ORDER

Plaintiffs,

v.
WINDSOR SURRY COMPANY, d/b/a
WINDSORONE; WINDSOR WILLITS
COMPANY, d/b/a WINDSOR MILL; and
WINDSOR HOLDING COMPANY,
Defendants.

AIKEN, District Judge:
In this putative products liability class action, detendants Windsor Surry Company,
Windsor Willits Company, and Windsor Holding Company (collectively "defendants") move
under Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintifls Robe1t Torch and Jesus
Gomez's amended complaint.
claims.

Defendants also move to strike all class action allegations and

Plaintiffs move to consolidate this action with Windsor Suny Co. v. Gomez, Case No.

3:17-cv-01868-SI, which is currently before Judge Simon.

I - OPINION AND ORDER

For the reasons set f01th below,

defendants' motion to dismiss is granted in patt and denied in part, defendants' motion to strike
class allegations is denied, and plaintiffs' motion to consolidate is granted.

BACKGROUND
This is a products liability case involving allegedly defective wood boards used for
external trim on houses and other buildings.

The amended complaint alleges five causes of

action: (I) strict products liability, (2) negligence, (3) breach of express warranty under Or. Rev.
Stat. § 72.3130, (4) breach of implied warranty of merchantability under Or. Rev. Stat.

§ 72.3140, and (5) breach of implied warranty of fitness for a particular purpose under Or. Rev.
Stat. § 72.3150.

Plaintifls seek damages and declaratory relief on behalf of themselves and a

putative class of similarly situated individuals.
WindsorONE is a type of trim board used in constrnction and sold by defendants.
Defendants "market[] and sell[] the pre-primed trim board for exterior application[.]" First Am.
Comp!.

,r

28.

It is made of Radiata Pine.

Defendants adve1tise WindsorONE as suitable trim

board for "homes, buildings, and other wood structures."

Id.

,r

58.

Generally, plaintifls allege

that defendants marketed WindsorONE as a trim board that was free of defects and waterproof
The timeline in this case is complicated, but crncial.

Taking the allegations in the First

Amended Complaint as true, the order of events is as follows.
Plaintiff Torch purchased a home in Pottland, Oregon from Dan and Kay Hall ("the
Halls'') in 2011. Several years before plaintiff purchased the prope1ty, the Halls, with the help of
their contractor, Don Young ("Young''), had added onto the structure of their house and created a
garden room

The Halls used WindsorONE trim board in the construction of the garden room.

They purchased the trim board at Parr Lumber in Po1tland on several dates between October
2007 and Febrnary 2008.

2 - OPINION AND ORDER

In "late 2014," Torch noticed "large splits, warping, and ... fungus ... growing out of'
the WinsdorONE trim board on the outside of the garden room Id.

~

114. Torch requested an

inspection by Young, and Young subsequently filed a claim through Pall' Lumber with
defendants' agent, Norean Consulting Group ("Norean''), in September 2015.
investigation and

inspection,

defendants, through Norean,

denied coverage.

After an
Defendants

contended that the source of the damage was wood decay and that the products were unprotected
by any warranty against that type of damage.

However, defendants offered a settlement fur

"2,004 linear feet ofWindorONE+ Protected trim board." Id.

~

125. Torch rejected that ofter.

Plaintiff Gomez built his own home in Bridal Veil, Oregon from May 2006 to April
2007.

Gomez's home incorporates WindsorONE wood purchased from Parr Lumber in May

2006.

''In approximately March 2014," Gomez noted that the WindsorONE wood "was

beginning to show signs of deterioration."

Id.

~

151.

Gomez filed a claim similar to the one

Young filed on Torch's behalf, and because the source of the damage was wood decay (and thus,
in defendants' view, not covered by any applicable watTanty), defendants denied coverage.
For the purposes of this litigation, plaintifls identify September 1, 2014, and March 15,
2014 as the dates of discove1y of the wood damage fur Torch and Gomez, respectively.
Defendants have accepted those estimates fur the purposes of the pending motions.
Befure filing suit in this court, Torch and Gomez were unnamed class members in a
putative class action in the Notthem District of California ("California action''). t

Class

cettification in the California action was denied on July 24, 2017.

1

I take judicial notice of the docket, filings, and orders in Cover v. Windsor Surry et al.,
No. 14-cv-05262-WHO (N.D. Cal.) pursuant to Federal Rule ofEvidence 20l(b)(2).
3 - OPINION AND ORDER

STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theoty to suppott the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F .3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual
allegations, the coutt must accept as true all well-pleaded material facts and construe them in the
light most favorable to the non-moving patty.
1140 (9th Cir. 2012).

Wilson v. Hewlett-Packard Co., 668 F.3d 1136,

"A claim has facial plausibility when the plaintiff pleads factual content

that allows the coutt to draw the reasonable inference that the defendant is liable for the
misconduct alleged."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell At/. Co1p. v.

Twombly, 550 U.S. 544, 556 (2007)).
The district coutt has discretion when deciding whether to strike a patt of a pleading.

Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th Cir. 1990). Coutts
disfavor striking pleadings, and grant motions to strike infrequently.

Blincoe v. W. States

Chiropractic Coll., 2007 WL 2071916, No. CV-06-998-PK, *I (D. Or. July 14, 2007).
However, a coutt may grant a motion to strike when omission of the challenged material would
have the "effect of making the trial of the action less complicated" or would result in
"streamlining the ultimate resolution of the action[.]" State of Cal. ex. rel. State Lands Comm 'n

v. United States, 512 F. Supp 36, 38 (N.D. Cal. 1981).
DISCUSSION
Defendants insist that all of plaintifls' claims are time-barred under Oregon law.
Plaintifls counter that the statutes of limitations do not bar this action, citing the doctrines of
equitable estoppel and equitable tolling.

4 - OPINION AND ORDER

Plaintiffs aver that fraudulent conceahnent both estops

defendant from asse1ting any staMe of limitations defense and equitably tolls the staMes of
limitations. Lastly, plaintiffs contend that under American Pipe & Constr. Co. v. Utah, 414 U.S.
538 (1974), the staMes of limitations were tolled during the pendency of the California action.
Defendants' only argument for dismissing the products liability and negligence claims is
that they are time barred.
timeliness grounds.

Defendants also challenge plaintifls' breach of warranty claims on

But defendants argue in addition that, even if the breach of warranty claims

are timely, they fail for various reasons: (1) defendants explicitly disclaimed any implied
warranties as well as any express warranties except two, which guarantee the end- and edgegluing for ten years and the primer for five years; (2) no express warranties were the basis of the
bargain between the parties; and (3) there is a lack of privily between the patties. Because the
timeliness of each claim is potentially dispositive, I begin by analyzing the patties' staMe of
limitations dispute. I then proceed to analyze defendants' remaining arguments.

I.

Statutes ofLimitations
Plaintifls bring this action in federal comt under the Class Action Fairness Act

("CAF A'), 28 U.S.C. §§ 1711 et seq. "CAFA provides expanded original diversity jurisdiction
for class actions meeting the amount in controversy and minimal diversity and nurnerosity
requirements set fmth in 28 U.S.C. § 1332(d)(2)."

United Steel, Paper & Forestry, Rubbe1;

1vffg., Energy, Allied Indus. & Serv. Workers Int'/ Union, AFL-CIO, CLC v. Shell Oil Co., 602 ·
F.3d 1087, 1090-91 (9th Cir. 2010). "[F]ederal courts exercising diversity jurisdiction are to use
state statutes of limitation." Nev. Power Co. v. lYfonsanto Co., 955 F.2d 1304, 1306 (9th Cir.
1992).

Relatedly "[f]ederal comts must abide by a state's tolling rnles, which are integrally

related to statutes of limitations." Albano v. Shea Homes Ltd. P'ship, 634 F.3d 524, 530 (9th Cir.
2011 ).

5 - OPINION AND ORDER

Plaintills offer two theories for effectively extending the limitations period for all of their
claims.

First, they argue that, due to defendants' purpottedly fraudulent actions, the statutes of

limitations should be equitably tolled or, in the alternative, defendants should be equitably
estopped from asserting the statute of limitations defense.

Second, plaintiffs contend that, due to

the California action, the claims should be tolled under the American Pipe doctrine.
A.

Equitable Estoppel/Equitab/e Tolling

Equitable estoppel precludes a person, by viitue of his conduct, from assetting a right that
he otherwise would have had.

Day v. Adv. M&D Sales, Inc., 86 P.3d 678, 682 (Or. 2004).

Equitable estoppel has five elements: (1) there must be a false representation; (2) the
representation must have been made with knowledge of the facts; (3) the other patty must have
been ignorant of the tnrth; (4) the representation must have been made with the intention that it
should be acted upon by the other party; and (5) the other patty must have been induced to act
upon the representation.

Id.

"For equitable estoppel to apply, the false representation must be

one of existing material fact, and not of intention, nor may it be a conclusion from facts or a
conclusion of law." Id. (internal quotation marks omitted).
The doctrine of equitable estoppel focuses almost exclusively on the actions of the
defendant.

The Ninth Cii-cuit has held that Oregon coutts apply equitable estoppel to bar a

statute of limitations defense under only two circumstances: (1) the defendant "lulled the
plaintiff; by affitmative inducement, into delaying the filing of a cause of action, or similarly, ...
he lulled the plaintiff into believe he had no cause of action against the defendant[,]" or (2)
"there has been fraud on the patt of a fiduciary in concealing material facts evincing a cause of
action."

Philpott v. A.H Robbins Co., Inc., 710 F.2d 1422, 1425 (9th Ck. 1983). Plaintills

argue that defendants should be equitably estopped from assetting a statute of limitations defense

6 - OPINION AND ORDER

because they fraudulently concealed defects in the WindsorONE trim board, thereby delaying
plaintiffs' discove1y of the harm
In the alternative, Plaintifls contend the statute of limitations should be equitably tolled
with respect to all of their claims.

As the Ninth Circuit has explained, the doctrine of equitable

tolling applies "in situations where, despite all due diligence, the party invoking equitable tolling
is unable to obtain vital information bearing on the existence of the claim." Socop-Gonzalez v.

INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en bane) (internal quotation marks omitted)
(alterations nmmalized).

For example, federal courts have allowed equitable tolling ''where the

[plaintiff] has been induced or tricked by his adversaty's misconduct into allowing the filing
deadline to pass." lnvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (internal quotation
marks omitted).

Ahhough "the application of the doctrine of equitable tolling to Oregon's

statutes of limitation would not be cont:raty to Oregon law," Hubbard v. Progressive Universal

Ins., 2012 WL 3925057, No. 3:l l-cv-1120-ST, *4 (D. Or. Aug. 6, 2012), "Oregon law provides
very little precedent for equitable tolling[,]" V.T. v. City of Medford, Or., 2015 WL 300270, No.
l:09-cv-03007-PA, *5 (D. Or. Jan. 22, 2015).

Other jurisdictions generally hold that "[t]he

predicates for equitable tolling are bad faith, deception, or false assurances by the defendant and
the exercise of diligence by the plaintiff." lvfillay v. Cam, 955 P.2d 791, 797 (Wash. 1998).
Courts consider prejudice to the defendant and decline to apply equitable tolling in cases where
plaintifls "seek to avoid the consequences of their own negligence."

Simmons v. Afethodist

Hasps. ofDallas, 106 F. Supp. 3d 799,807 (N.D. Tex. 2015) (internal quotation marks omitted).
Plaintifls offer fraudulent concealment as a justification for equitably tolling their claims
and estopping defendants from pleading the statute of limitations defense.

''Fraudulent

concealment in the pertinent sense involves conceahnent of the fact that a cause of action has

7 - OPINION AND ORDER

accrned against the defendant." Classen v. Arete NW, LLC, 294 P.3d 520, 526 (Or. Ct. App.
2012) (internal quotation marks omitted); see also Lukavsky v. City & Cnty. of San Francisco,
535 F.3d 1044, 1051 (9th Cir. 2008) (explaining that the "actions taken by the defendant to
prevent a plaintiff from filing suit" are "sometimes referred to as 'fraudulent conceahnent"')
(quoting Johnson v. Henderson, 314 F.3d 409,414 (9th Cir. 2002) (emphasis omitted)).
Plaintiffs cite Chaney v. Fields Chevrolet Co., 503 P .2d 1239 (Or. 1972) in suppott of
their argument that fraudulent conceahnent triggers equitable tolling and equitable estoppel in
this case. In Chaney, the plaintiff pmchased a car on credit from the defendant and subsequently
retmned it.

Chaney, 503 P.3d at 1239.

The return of the car was governed by a contractual

provision that, when the car was resold, any smplus beyond the remaining balance on the loan
would go to the plaintiff.

"[The d]efendant resold the vehicle in 1964 for more than the amount

owing on the contract, but concealed [that] fact from plaintiff." Id.

It wasn't until the next year,

in 1965, when the plaintiff discovered he was due the surplus. Id. at 1239-40. In 1971, plaintiff
sued to recover the money. Id. at 1240. Because the suit was brought outside the applicable six.year statute of limitations, plaintiff argued that the statute should be tolled for the year that
defendant knew about, and concealed, the surplus owed to plaintiff. Id. at 1239-42. Citing an
American Law Reports summary, the comt explained:
According to the majority rule . . . fraudulent concealment of a cause of action
from the one in whom it resides by the one against whom it lies constitutes an
implied exception to the statute of limitations, postponing the commencement of
the running of the statute until discovery or reasonable opp01tnnity of discovery
of the fact by the owner of the cause of action. Under this rnle, one who
wrongfully conceals material facts and thereby prevents discovery of his wrong or
of the fact that a cause of action has accrued against him is not permitted to assett
the statute of limitations as a bar to an action against him[.]

Id. at 1241.

The comt went on to hold that the complaint "allege[d] sufficient facts which, if

ttue, would toll the statute for the length of the time required to permit the bringing of the present
8- OPINION AND ORDER

action." Id. at 1242. Though this discussion, the Chaney comt made clear that, with respect to
fraudulent conceahnent, equitable estoppel and equitable tolling are two sides of the same coin;
both doctrines tum on whether the defendant, in bad faith, caused the delay in filing the
complaint.
The Ninth Circuit has interpreted Oregon case law, specifically citing Chaney, to mean
that a non-fiduciary's mere conceahnent of the facts underlying a cause of action is insufficient
to trigger equitable estoppel.

Philpott, 710 F.2d at 1425.

Rather, the defendant must

affirmatively lull the plaintiff into delaying filing suit or into believing that he has no cause of
action. Id.

In other words, in order to avoid a statute of limitations bar on a theory of fraudulent

conceahnent, "the plaintiff must point to . . . some active conduct by the defendant above and

beyond the wrongdoing upon which the plaintiff's claim is filed, to prevent the plaintiff from
suing in time."

Lukavsky, 535 F.3d at 1052 (intemal quotation marks omitted) (emphasis in

original).
Here, plaintifls have not identified any alleged bad faith apatt from the defendants'
purpotted concealment of the defects in WindsorONE trim board.
affitmative actions designed to delay the filing of this lawsuit.

They have not alleged any

I hold that, on the facts of this

case, there is no fraudulent conceahnent to justify application of equitable estoppel or equitable
tolling.

Pleading fraudulent actions does not establish fraudulent conceahnent fur estoppel or

tolling pmposes.

See id. ("TI1e primary problem with plaintifls' argument is that their alleged

basis for equitable estoppel is the same as their cause of action."); Benson Tower Condo. Owners

Ass'n v. Victaulic Co., 2014 WL 5285475, No. 3:13-cv-01010-SI, *10 (D. Or. October 15, 2014)
("The mere fact that Plaintiff has adequately pleaded fraud does not impott a discove1y rule into
the statute of limitations for a related breach ofwananty claim.').

9- OPINION AND ORDER

On March 27, 2018, plaintifls filed a Notice of Supplemental Authority, submitting an
Opinion and Order by Judge McCafferty from the U.S. District Comt for the District of New
Hampshire (''New Hampshire action"). 2

The New Hampshire action is a putative class action

against the same defendants and arising out of similar fuctual allegations.

Judge McCafferty

found that the plaintiff in the New Hampshire action had sufficiently pleaded fraudulent
conceahnent.

Timt ruling does not change the analysis here for two reasons.

First, Judge

McCafferty was applying New Hampshire law to the plaintifls' claims; the doctrine of fraudulent
conceahnent is not identical across all jurisdictions and I am bound to follow the Oregon
Supreme Comt and the Ninth Circuit in analyzing that doctrine's applicability.

Second, the

pleadings in the New Hampshire case are distinguishable from the pleadings before me.
The

plaintiff in the New Hampshire

action specifically alleged that defendants'

"wan-anty-clairn process is an artifice" and that defendants "deny warranty claims based on
improper installation despite the fuel that no method of installation would avoid or cure the
inherently defective nature of defendants' design."
quotation marks omitted).

Pis'. Notice Supp. Auth. Ex. I at 7 (internal

Judge McCaffe1ty held that whether fraudulent conceahnent tolled the

staMe of limitations turned, in part, on ''the effect of the allegedly false inspection repo1t" the
plaintiff had received.

Id. at 21.

A sham inspection procedure is the so1t of affirmative action

that could lull a plaintiff into not acting on his rights, as necessary to toll the staMe of limitations
under the fraudulent concealment doctrine in the Ninth Circuit.

Plaintifls in this case have not

alleged that defendants performed a sham inspection here. As such, fraudulent conceahnent does
not aid plaintiffs' in the timeliness of their claims.

2

I take judicial notice of the docket, filings, and orders in Begley v. Windsor Surry Co.
dlbla Windsor ONE & Windsor Willits Co. dlbla Windsor lvfill, Case No. l:17-cv-00317-LM
(D.N.H.), pursuant to Federal Rule of Evidence 201(b)(2).
IO-OPINION AND ORDER

Importantly, even if fraudulent concealment did equitably toll the statute of limitations
(or, alternatively stated, equitably estop defendants from asse1ting a limitations defense) here, it
would suspend the running of the limitations period for plaintiffs' claims only through the date
on which plaintifls discovered the defect in the WindsorONE trim board. See Chaney, 503 P.2d
Such tolling would not aftect the timeliness of plaintiffs' products liability or

at 1242.

negligence claims because the Oregon statutes of limitation for those claims already incorporate
a discovery rule-that is, even in the absence of fraudulent concealment, the limitations period
runs from the date on which the plaintiff discovered or reasonably should have discovered the

See Or. Rev. Stat. § 30.905(1) (setting out the discovery rule for products liability

defect.

claims); Greene v. Legacy Emanuel Hosp. & Health Care Ctr., 60 P.3d 535, 539 (Or. Ct. App.
2002) (setting out the discovery rule for negligence claims).

B.

American Pipe Tolling

Plaintiffs cite American Pipe and Resh v. China Agritech, Inc., 857 F.3d 994 (9th Cir.
2017), for the proposition that the statutes of limitation were tolled during the pendency of the
California action.

The American Pipe Court held that a putative class action filed in federal

comt alleging violations of federal law tolls the statute of limitations for individuals who would
have been members of the class with respect to their individual claims. American Pipe, 414 U.S.
at 553.

In Resh, the Ninth Circuit extended the American Pipe rule to toll the statute of

limitations with respect to the assertion of class claims, thereby permitting "stacked" class action
cases.

Resh, 857 F .3d at 1004.

After the briefing on this motion was complete, the Supreme

Comt reversed tl1e Ninth Circuit's ruling in Resh, clarifying that ''American Pipe does not permit
a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class
action." China Agritech, Inc. v. Resh,_ U.S._,_, 138 S. Ct. 1800, 1806 (2018). The

11 - OPINION AND ORDER

CoU1t reasoned that "[t]he efficiency and economy of litigation that suppo1t tolling of individual
claims ... do not suppott maintenance of untimely successive class actions; any additional class
filings should be made early on, soon after the commencement of the first action seeking class
ce1tification." Id. (internal quotation marks and citation omitted; emphasis in original).
It is important to note that American Pipe and Resh concerned same-jurisdictional

tolling, in that they tolled the statutes of limitation for federal claims during the pendency of a
class action involving those same federal claims.

Application of tolling law in the Ninth Circuit

is more nuanced with respect to cross-jurisdictional tolling.

That type of tolling applies "in a

case where a plaintiff s[eeks] to use a class action filed in one jurisdiction to toll an action later
filed in another" jurisdiction. Hatfieldv. Halifax PLC, 564 F.3d 1177, 1187 (9th Cir. 2009).
Defendants offer Clemens v. DaimlerCh1ysler Co1p., 534 F.3d 1017 (9th Cir. 2008) to
cotmter plaintiffs' argU1nent that the California action tolled the statutes of limitations here.

In

Clemens, the plaintiff; Clemens, brought a class action in federal coutt in California alleging

defective head gaskets in Dodge Neon cars. Clemens, 534 F .3d at 1021. That lawsuit involved
claims under federal law and California law.

"In 2001, a nationwide class action concerning

Dodge Neon head gaskets [had been] filed in Illinois [state court].

It [wa]s undisputed that

Clemens was a member of the nationwide class that the plaintiffs in that case sought to ce1tify."
Id. at 1025; see also Clemens v. DaimlerChrysler Corp., 2006 WL 5988840, No. CV 05-8484-

JFW (CWx), *5 (C.D. Cal. Aug. 31, 2006).

The Clemens court thus had to decide whether

American Pipe tolls the statute of limitations for a putative federal- and state-law class action

filed in federal court based on the prior filing of a putative state-law class action filed in state
court in another jurisdiction.

12- OPINION AND ORDER

The Clemens CoUlt held that "American Pipe-which allows tolling within the federal
system in federal question class actions-does not mandate cross-jurisdictional tolling as a
matter of state procedure."

Clemens, 534 F.3d at 1025.

The coUlt surveyed state law and

concluded that, ahhough cross-jurisdictional tolling is recognized in some states, it is the
minority rule.

Id.

Accordingly, the coUlt held that putative class actions based on state law

claims toll the statute of limitations for a class claims under the law of a second, different state
only when that second state affinnatively allows cross-jurisdictional tolling.

Id.

Because the

California comts had not recognized cross-jmisdictional tolling, the comt held that the Illinois
class action did not toll the California statute of limitations and affirmed the dismissal of the
case. Id.
Plaintiffs insist that the tolling question here differs slightly from the question in

Clemens because here, unh'ke in Clemens, the prior class action was filed in a foreign
jurisdiction's federal comt. While it is true that Clemens did not address the precise procedural
posture presented here, there are strong similarities between this case and Clemens. The present
case-like Clemens-asks when American Pipe tolls the statute of limitations for class claims
arising under state law.

The only difrerence between this case and Clemens is that, here, the

previous class action was brought in federal comt instead of in state coutt.
For present pUl·poses, it does not matter whether the prior nationwide class action was
filed in federal court rather than in state comt.

Federal coUlts apply state substantive law and

federal procedm·al law to state claims. In re Cnty. of Orange, 784 F .3d 520, 523-24 (9th Cir.
2015).

Statutes of limitation and the tolling questions related to them are questions of

substantive law. Albano, 634 F.3d at 530. Thus, it is my ''task ... to discern how the Supreme
Court of [Oregon] would resolve the limitations and tolling questions before [me]."

13 - OPINION AND ORDER

Id.

The

question is whether the Oregon Supreme Court would engage in equitable tolling during the
pendency of a class action in comt in another jurisdiction.

The Oregon Supreme Comt has

applied the American Pipe rule on two occasions, both in the context of same-jurisdictional
tolling. See, e.g., Bergquist v. Int'/ Realty, Ltd., 537 P.2d 553, 562 (Or. 1975) (tolling the stattrte
of limitations where both the class action and the individual claims arose under Oregon law);

Shannon v. Carter, 579 P.2d 1288, 1290 (Or. 1978) (same for federal law). Plaintiffi have cited
no law, and I am aware of none, suggesting that the Oregon comts would apply American Pipe
tolling diflerently depending upon whether the prior class action was filed in a foreign federal or
state court.
Even if Oregon courts would apply the American Pipe rule in the context of crossjurisdictional toUing, tolling would still not be appropriate here because plaintiffs have filed a
subsequent class action, not subsequent individual claims.

As mentioned, China Agritech held

that American Pipe does not allow tolling of subsequent class actions. China Agritech, _

U.S.

at_, 138 S. Ct. at 1806.

C.

Application ofStatutes ofLimitation to Plaintiffs' Claims
Having determined that neither equitable tolling/equitable estoppel nor American Pipe

tolling acts to extend the limitations period in this case, I consider whether any of plaintiffi'
claims are nonetheless timely.

1.

Strict Products Liability and Negligence

In Oregon,
a product liability civil action for personal injury prope1ty damage must be
commenced not later than two years after the plaintiff discovers, or reasonably
should have discovered, the personal injmy or prope1ty damage and the causal
relationship between the injmy or damage and the product, or the causal
relationship between the injury or damage and the conduct of the defendant.

14- OPINION AND ORDER

Or. Rev. Stat. § 30.905(1).

Similarly, the statute of limitations for negligence actions is two

years. See id. § 12.110(1) (providing that suits "for any injury to the person or rights of another,
not arising on contract . . . shall be commenced within two years[.]'').

As noted above, for

negligence claims in Oregon, '~he period of limitations . . . commences from the earlier of two
possible events: ( 1) the date of the plaintiffs actual discovery of injury; or (2) the date when a
person exercising reasonable care should have discovered the injury, including learning fucts that
an inquiry would have disclosed." Greene, 60 P.3d at 539 (emphasis in originaQ.
Here, Torch purpo1tedly discovered the wood damage on September 1, 2014, which
means the statutes of limitations for the products liability and negligence claims ran on
September 1, 2016.
limitations period.

The initial complaint in this case was filed June 12, 2017, outside that

Similarly, Gomez discovered his wood damage on or about March 15, 2014.

He was added to the amended complaint on November 7, 2017, outside the limitations deadline
of March 15, 2016.

Plaintiffs' strict products liability and negligence claims are dismissed for

untimeliness.

2.

Contract Claims

Plaintiffs bring three contract claims: (1) Breach of Express Wmrnnty, (2) Breach of
Implied Warranty of Merchantability, and (3) Breach of Implied Wmrnnty of Fitness for a
Pmticular Purpose.

Under Oregon contract law, "[a]n action for breach of any contract for sale

must be commenced within four years after the cause of action has accrued." Or. Rev. Stat. §
72.7250(1). Subsections two and four of this statute are also relevant; they state
(2) ... A breach ofwairnnty occurs when tender of delive1y is made, except that
where a warranty explicitly extends to future pe1formance of the goods and
discovery of the breach must await the time of such pe1formance the cause of
action accrues when the breach is or should have been discovered.

15 - OPINION AND ORDER

(4) This section does not alter the law on tolling of the statute of limitations[.)

Id. §§ 72.7250(2), (4) (emphasis added).
i.

Breach of Express Warranty

The respective tender of delivery dates for Torch and Gomez are February 2008 and May
2006.

Because there is no ground for tolling the limitations period, the proper time for filing suit

to enforce warranties generally would be 2012 for Torch and 2010 for Gomez.

However, the

patties dispute whether any applicable wairnnty in this case "explicitly extends to future
petformance," thus creating an exception to the four year statute of limitations. Id. § 72.7250(2).
The statute on express warranties explains
(1) Express warranties by the seller are created as follows:
(a) Any affinnation of fact or promise made by the seller to the buyer which
relates to the goods and becomes pait of the basis of the bargain creates an
express wairnnty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain
creates an express wmTanty that the goods shall conform to the description.

(2) It is not necessaiy to the creation of an express warranty that the seller use
formal words such as "warrant" or "guarantee" or that the seller have a specific
intention to make a warranty, but an affinnation merely of the value of the goods
or a statement purpotting to be merely the seller's opinion or commendation of
the goods does not create a warranty.

Id. §§ 72.3130 (1) & (2).

Paragraph 206 of the First Amended Complaint alleges nine

representations, from various promotional mediums, that plaintiffs allege constitute express
warranties:
•
Windsor Mill uses the highest quality materials to produce the highest
quality products.

16- OPINION AND ORDER

•
No special precautions are necessary when working with WindsorONE
versus composite trim boards.
•

Tliat WindsorONE is superior to wood and should be thought of as "turbo

wood."
•
Windsor ONE has "all the great qualities of wood, but in addition, it
benefits from increased structural stability, decreased cupping, warping, or
twisting .... "
•

WindsorONE 'joints are stronger than the wood itself, and waterproof."

•

WindsorONE is superior to #2 Pine, Spruce, or Fir, primed or unprimed.

•
Redwood and Cedar products "possess no advantage over WindsorONE,
and in ... fact are inferior [to WindsorONE] when it comes to performance."
•

"WindsorONE is suitable for all interior and exterior applications."

•

WindsorONE provides "durability and long tetm performance .... "

Of those nine marketing statements representations, the parties focus on whether the claim that
"WindsorONE provides 'durability and long term petformance[,]"' sufficiently guarantees future
perfo1mance as required by Or. Rev. Stat. § 72.7250(2).
Plaintiffs submit three cases to suppo1t their contention that whether this representation is
a warranty of future performance is a triable issue of fact.

The most on-point case is Hunter v.

Woodburn Fertilizer, Inc., 144 P .3d 970 (Or. Ct. App. 2006). In Hunter, the coutt held that the
representation that a paiticular product would be safe to use on "roses that ... would grow in the
spring of 2000" was a guarantee of future perfmmance. Hunter, 144 P.3d at 975. Also cited in

Hunter are plaintiffs' other two cases, Glen Peck, Ltd. v. Fritsche, 651 P.2d 414 (Colo. Ct. App.
1981) and Salt Lake City Corp. v. Kosier Corp., 855 F. Supp 1560 (D. Utah 1994). Glen Peck
dealt with a breeding contract, where if a bull failed to be a successful breeder, "the matter shall
be reported in writing to the seller within six (6) months following the date of purchase or six (6)
months after the bull has reached 14 months of age." Glen Peck, 651 P.2d at 415. The Oregon
17 - OPINION AND ORDER

CoUlt of Appeals found this to be a good example of the specificity required for a future
performance wairnnty. Hunter, 144 P.3d at 975. The last case guaranteed a contractor's work
through a specific point in the future when plaintiff would be released from liability. Salt Lake,
855 F. Supp. at 1568.

The Oregon CoU1t of Appeals noted that Salt Lake involved both a

"promise that the goods would petform" and "an explicit reference to the futme time when the
plaintiff would be released from liability[.]" Hunter, 144 P.3d at 975.
With that background of case law in mind, I hold, as a matter of law, that the
representation that a product "provides durability and long te1m petfmmance" is too vague to
warrant future pe1fo1mance. The statement does not denote a specific point in the fi1ture through
which the product should be expected to petform. The phrase "long term perfmmance" does not
measure up to the level of specificity evidenced in the case law. 3

I agree with defendants that

this statement does not have the measurability and objectivity to warrant future perfotmance.

It is undisputed, however, that defendants extend to buyers of WinsdorONE the following
two express warranties:
Windsor Mill guarantees WindsorONE's end and edge-gluing for IO years and its
primer for 5 years. Windsor Mill will replace, without charge, any WindsorONE
product that installed according to directions and fails to meet this warranty
within that time.
First Am. Comp!. 108.

Those wmrnnties are for firture pe1formance because they specifically

guarantee petformance through a ce1tain point in the futme.

However, my reading of the First

Amended Complaint shows a lack of sufficient pleading to state a claim for breach of the fiveyear primer wmrnnty.

Certainly, the complaint makes mention of the five-year warranty on

3

Because the "durability and long tetm petformance" statement is too vague to be a
wmrnnty of future performance, I need not consider whether defendants' express disclaimer of
warranties bars a suit to enforce that marketing statement.
18 - OPINION AND ORDER

primer, but plaintiffi; do not allege that deficient primer caused the damage to the wood. Thus,
any claims based on that portion of the wairnnty will not proceed.
However, a claim for the breach of the ten-year adhesive warranty is sufficiently pleaded.
Specifically, plaintifls allege, "the adhesive used is non-waterproof[,]" is "unsuitable for exterior
use[,]" and "breaks down over time [which] allows water to penetrate the untreated and rot
susceptible Radiata Pine." First Am. Comp!. ,i,i 79, 82. At this stage, those allegations establish
a nexus between the adhesive and damage.

If the adhesive is deficient, it is ce1tainly plausible

that it would allow water to seep into the wood and cause damage. Accepting plaintifls' dates of
purchase, the ten-year warranty would have ended in February 2018, at the latest, for Torch, and
May 2016 for Gomez. Adding the four-year statute of limitations for breach of wairnnty claims,
plaintiffi; could file their claims as late as 2022 and 2020, respectively. Therefore, the breach of
express wairnnty claim with respect to fuilure of the adhesive is timely.

ii.

Breach ofImplied Warranties

In Oregon, "a warranty that the goods shall be merchantable is implied in a contract for
their sale if the seller is a merchant with respect to goods of that kind." Or. Rev. Stat. § 72.3140.
Because breach of warranty accrnes when delivery is tendered, the same temporal restrictions
that apply to the express warranty claims apply here.
express

warranties,

pe1formance.

however,

implied warranties

Hunter, 144 P .3d at 973.

See Or. Rev. Stat. § 72. 7250(2). Unlike
cannot qualify as warranties of future

Plaintiffi; contend that fraudulent conceahnent tolls the

limitations period, but as discussed above, neither equitable tolling/equitable estoppel nor

American Pipe tolling applies.
as untimely.

19 - OPINION AND ORDER

The statute of limitations is not tolled and the claim is dismissed

The same logic dooms plaintiffi' claims for breach of implied warranty for a pmticular
purpose. Oregon's pertinent statute explains:
Where the seller at the time of contracting has reason to know any pmticular
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, there is . . . an
implied warranty that the goods shall be fit for such purpose.
Or. Rev. Stat. § 72.3150.

The application of the limitations period here mirrors the previous

implied warranty claim with respect to purchase dates, accrnai and purported breach. As such,
the claim is dismissed as untimely.

4

In swn, the only claim to survive defendants' statute of limitations defense is the claim
for breach of the express ten-year adhesive wmrnnty.

II.

Remaining Arguments
Defendants contend that none of the marketing statements or express warranties served as

the basis of the bargain.

To sustain a breach of express wmrnnty claim, (I) "there must be an

affimiation of fact or description of goods by the seller[,]" and (2) '~hat factual affirmation or
description must be the 'basis of the bargain."' Larrison v. lvfoving Floors, Inc., 873 P.2d 1092,
1094 (Or. Ct. App. 1994) (quoting Or. Rev. Stat. § 72.3130(l)(a)). "The basis of the bargain
requirement . . . does not mean that a description by the Seller must have been bargained for.
Instead, the description must go to the essence of the contract."

Lumber Sales, Inc., 572 P.2d 1322, 1326 (Or. 1977).

Autzen v. John C. Taylor

A "seller need only introduce [a

description of the product] into the bargaining process" for that description to become a basis of
the bargain. Id. at 1325.

4

Because the implied warranty claims are untimely, I need not address whether
defendants' warranty disclaimer effectively bars any claims for breach of implied warranty.
20 - OPINION AND ORDER

Defendants argue that plaintiffs have not adequately alleged that they relied on any
express wmrnnties in deciding to purchase WinsdorONE trim board.

In Larrison, when the

defendant denied that a watrnnty was expressed to the plaintiff; the comt held that this question
"is precisely the smt of conflict in the evidence that plaintiff is entitled to have a jury resolve."

Larrison, 873 P.2d 1094-95.
bargain is a question of fuct.

Indeed, whether an express warranty constitutes the basis of the
Such questions generally cannot be resolved at the pleadings stage.

Otto v. Heckler, 781 F.2d 754, 758 (9th Cir. 1986). Because it is a question offuct whether the
ten-year adhesive warranty went to the essence of the sales contract for the WindsorONE trim
board on plaintiffs' homes, basis of the bargain is not a ground to dismiss that claim at the
pleadings stage.
Next, the patties disagree as to whether privily of contract is required to sustain a breach
of warranty claim and whether each of the named plaintiffs had privily with defendants.

In

Oregon, privily of contract is not required to state a claim for economic losses caused by breach
of express watrnnties. Kelly v. Olinger Travel Homes, Inc., 117 P.3d 282, 287 (Or. Ct. App.
2005).

On the other hand, privily of contract is necessary to suppo1t a claim for breach of

warranty when the damages sought are other than pure economic damages (e.g., personal
injuries, property damage). Simonsen v. Ford Motor Co., 102 P.3d 710, 721 (Or. Ct. App. 2004).
The term "economic loss" derives from an Oregon tmt principle providing that "a
plaintiff seeking damages for purely economic losses in negligence [may] do so only on the basis
of the breach of a duty other than the ordinaiy duty to exercise reasonable care to avoid
foreseeable harm" Harris v. Suniga, 149 P.3d 224, 227 (Or. Ct. App. 2006). That tmt-based
definition of "economic loss" applies when considering whether privily is required for a breach
of warranty claim. See State ex rel. W. Seed Prod. Corp. v. Campbell, 442 P.2d 215,217 (Or.

21 - OPINION AND ORDER

Property damage generally is not considered a purely economic loss. See Harris, 149

1968).

P.3d at 227 (Or. Ct. App. 2006). However, in a lawsuit involving a defective product, the cost to
repair or replace that product is a pure economic loss. See ~Millenkamp v. Davisco Foods Int 'l,

Inc., 391 F. Supp. 2d 872, 878 (D. Idaho 2005) (explaining that, under an Idaho doctrine similar
to Oregon's economic loss rnle, "cost of repair and replacement of defective property which is
the subject of the transaction'' is included in "economic loss," while "property damage
encompasses damage to property other than that which is the subject of the ... litigation.").
Because the purpmtedly defective trim board is the subject of this lawsuit, it is outside
what is normally considered "prope1ty damage" under the economic loss doctrine.

Both named

plaintiffs allege at least $30,000 in damages, First Am. Comp]. ~~ 134 & 168, and, presumably,
at least a pottion of those damages count as economic loss involving repair and replacement
costs.

As such, privity is not required for any claims for breach of express warranty. 5 Lack of

privity does not bar the plaintif:ts' surviving claim for breach of the ten-year adhesive wmrnnty.

III.

Motion to Strike
Defendants fiuther move to strike class allegations from the amended complaint.

Class

actions may be stricken at the pleading stage. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 212

5

Privity of contract is always required for breach of implied warranty claims, whether for
economic loss or for another type of damages. Davis v. Homasote Co., 574 P.2d 1116, 1117 (Or.
1978); W. Seed Prod. C01p., 442 P.2d at 217. Oregon comts have restricted recovery under an
implied warranty theory to injuries suffered by a person within the distributive chain. See Colvin
v. FMC Corp., 604 P.2d 157, 161 (Or. Ct. App. 1979) (holding that privity of contract is a
prerequisite for a breach of implied wa1Tanty claim from a person outside the distributive chain
seeking recove1y for personal injury).
Torch does not have privily of contract with defendants and is plainly outside the
distributive chain. He purchased his house from the Halls, who used WindsorONE to build their
addition to the house. He never shopped for, purchased, or installed WindsorONE wood on his
house. Even if they were not tirne-ba1Ted, Torch's implied wmrnnty claims would be dismissed
for lack of privily.
22 - OPINION AND ORDER

(9th Cir. 1975). However, motions to strike class allegations are generally disfavored because "a
motion for class ce1tification is a more appropriate vehicle" for testing the validity of class
claims. Thorpe v. Abbott Lab., Inc., 534 F. Supp. 2d 1120, 1125 (N.D. Cal. 2008). Accordingly,
motions to strike class allegations are granted only where "the complaint demonstrates that a
class action cannot be maintained." Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123,
1146 (N.D. Cal. 2010).

The "'granting of motions to strike class allegations before discovery

and in advance of a motion for class ce1tification is rare"' and has happened only in those limited
circumstances when "the class definition is obviously defective in some way."

Perkins v.

Linkedln Co1p., 53 F. Supp. 3d 1190, 1221 (N.D. Cal. 2014) (quoting Lyons v. Bank of Am., NA,
2011 WL 6303390, No. C 11-1232 CW, *7 (N.D. Cal. Dec. 16, 2011)). As the motion to strike
is not sufficiently targeted to the remaining claim, the motion is denied at this time.
IV.

Motion to Consolidate
Finally, plaintifls move to consolidate the present case with Windsor Suny Co. et al., v.

Gomez, Case No. 3:l 7-cv-01868-SI.

In that case, the present defendants instituted an action

against Jesus Gomez for breach of contract.
present litigation.

The cause of action arises out of Gomez joining the

Defendants contend that, Gomez breached his oral agreement to accept

WindsorONE+ board and settle his warranty claim with defendants when he joined this lawsuit.
Gomez disputes that he agreed to settle his claims against defendants.
Defendants brought their breach of contract action in Oregon state comt, and Gomez
removed to federal court.

Plaintifls promptly filed a motion to consolidate, consideration of

which I stayed pending Judge Simon's rnling on defendants' motion to remand for lack of
subject matter jurisdiction.

Judge Simon denied defendants' motion to remand to state comt.

Accordingly, I must decide whether the two cases should be consolidated.

23 - OPINION AND ORDER

Federal Rule of Civil Procedure 42(a) pennits consolidation of cases that present a
"common question of law or fact" and allows the coUJt to "issue any other orders to avoid
unnecessary cost and delay."

Fed. R. Civ. Pro. 4(a) & (a)(3). The common questions of fact

here are too substantial to be ignored.

A primaty reason defendants argue that Gomez is an

inadequate representative is that settlement and release bars Gomez's claims.

The sole claim in

the breach of contract action is that Gomez violated that same settlement and release agreement
by joining this lawsuit.

Consolidating these cases promotes efficiency and eliminates the risk of

conflicting decisions.
CONCLUSION

Defendants' motion to dismiss plaintifls' amended complaint (doc. 47) is GRAN1ED in
all respects except for the claims regarding breach of the ten-year adhesive warranty.
Defendants' motion to strike (doc. 48) is DENIED.

Plaintiffs motion to consolidate this action

with Case No.6:17-cv-01868-SI (doc. 51) is GRANTED.
IT IS SO ORDERED.
Dated this ~-I¼day of

Duwlbfl:20 l 9.
Ann Aiken
United States District Judge

24- OPINION AND ORDER