David Gelber v. Toyota Motor Corp

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JESSICA M. KRAMER, No. 13-56433
Plaintiff, D.C. No. 8:10-ml-02172-CJC-
RNB
And
DAVID GELBER, MEMORANDUM*
Plaintiff - Appellant,
v.
TOYOTA MOTOR CORPORATION, a
Japanese corporation / a foreign
corporation, DBA Toyota Motor North
America, Inc.; TOYOTA MOTOR
SALES, U.S.A., INC., a California
corporation / a foreign corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted October 23, 2015
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.
David Gelber appeals the district court’s grant of summary judgement in
favor of the defendants on claims under the California Consumer Legal Remedies
Act, Cal. Civ. Code § 1750 (CLRA), the California Unfair Competition Law, Cal.
Bus. & Prof. Code § 17200 (UCL), and breach of implied warranty under the
Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1794. Gelber also
appeals the district court’s denial of class certification of all consumers who
“purchased or leased a [Gen II] Prius Vehicle from an authorized Toyota dealer in
the State of California and who currently own or lease such Prius vehicle[s]” under
Fed. R. Civ. P. (23)(b)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.1
We affirm the district court’s grant of summary judgment, and its denial of class
certification.
1. To prevail on his theories under the CLRA, the UCL, and the Song-Beverly
Act in this case, Gelber needed to establish that the Gen II Prius contained a
1
“To the extent that we refer here to facts contained exclusively in
[documents filed under seal], we pro tanto lift the order sealing that document.”
United States v. Pimentel-Lopez, 2016 WL 3874414, at *4 n. 3 (9th Cir. July 15,
2016).
2
specific defect that rendered the product unsafe. See Daugherty v. Am. Honda
Motor Co., 51 Cal. Rptr. 3d 118, 127 (Ct. App. 2006) (explaining that under the
CLRA, any supposed defect must pose “safety concerns”); Wilson v. Hewlett-
Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012) (holding that under the UCL,
there is no duty to disclose any defect that is not contrary to any affirmative
statements made by the seller and does not affect the safety of the product);
Birdsong v. Apple, Inc., 590 F.3d 955, 958 (9th Cir. 2009) (rejecting claim under
the Song-Beverly Act where plaintiffs did not allege that iPods were unsafe for
listening to music or otherwise defective).
Gelber asserts that the Advanced Braking System of the Gen II Prius
prevents the car from stopping quickly enough. Gelber cites his own near-accident
and the expert testimony of Dr. Limpert in support of this theory. The district
court excluded much of Dr. Limpert’s testimony because he did not provide any
source for his benchmark of an unsafe stopping distance. Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 149–52 (1999). The district court did not abuse its
discretion. Id. at 142. Because of this, and other methodological flaws in his
testing, Dr. Limpert’s testimony did not tend to show that the Gen II Prius is
defective. Gelber’s testimony also fails to demonstrate the existence of a defect.
3
See Daugherty, 51 Cal. Rptr. 3d at 129; Wilson, 668 F.3d at 1141–45; Birdsong,
590 F.3d at 962.
The district court did not err in granting summary judgement, because the
cognizable evidence did not establish a genuine issue, with regard to the material
issue of whether the brakes were defective. We cannot fault the district court’s
careful decision on the evidentiary issue and careful analysis of the evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2. We also affirm the district court’s denial of class certification. Without any
evidence of a common defect, there are no “common questions of law or fact”
binding the proposed class together. Comcast Corp. v. Behrend, 133 S. Ct. 1426,
1432 (2013).
AFFIRMED.
4