                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JULIE HAMILTON; LYLE MCLEAN;                    No.    19-55223
NESTOR DIAZ; SAM FLOWERS,
individually and as a representative of the     D.C. No.
class                                           2:17-cv-01060-DMG-JEM

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

TBC CORPORATION; DYNAMIC TIRE
CORPORATION,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                             Submitted July 10, 2020**
                               Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and GORDON,*** District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.
      Defendants-Appellees TBC Corporation and Dynamic Tire Corporation

import and sell the Power King Towmax STR tire—a specialty tire marketed for

use on medium to heavy duty trailers. In 2017, Plaintiffs-Appellants Julie

Hamilton, Lyle McLean, Nestor Diaz, and Sam Flowers sued Defendants after

each Plaintiff had a STR tire fail during use because of a “tread separation.” The

First Amended Complaint’s (FAC) twenty-three claims, which we do not recount

at length here, sound principally in fraud, breach of express and implied

warranties, and violation of the consumer protection laws of California, Arizona,

Colorado, and Florida. Plaintiffs also allege that Defendants violated the

Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301–2312.

      Plaintiffs subsequently sought to certify a nationwide class action, but the

district court denied their request and instead certified a Florida-only class for a

single claim brought under the Florida Deceptive and Unfair Trade Practices Act,

Fla. Stat. § 501.201. Soon after, the district court granted summary judgment on

the entirety of the FAC after concluding Plaintiffs failed to introduce evidence that

the STR tires were defective. Plaintiffs now appeal both decisions. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s grant of

summary judgment.

      1. At summary judgment, Plaintiffs presented a declaration from their tire

expert, Kenneth Pearl. Pearl opined that the STR tires must have been defective


                                           2
because of their high warranty return rate, which he noted exceeded that of a

Firestone passenger vehicle tire recalled in the early 2000s. The district court

rejected this opinion as unreliable because Pearl failed to explain sufficiently why

a comparison between the two return rates supported his conclusion that the STR

tires were defective. We agree that Pearl’s declaration and expert report were

deficient. See Kumho Tire Co. v Carmichael, 526 U.S. 137, 148 (1999) (noting

that an expert’s opinion must “have a reliable basis in the knowledge and

experience of his discipline” (quoting Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 592 (1993))).

      Pearl’s failure to articulate the basis for his opinion is particularly significant

because uncontroverted evidence in the record established that (1) a defect is not

the sole potential cause of a tread separation, and (2) performance trends for one

type of tire may not apply to another tire that differs in design or application.1

Plaintiffs contend that Pearl concluded that the characteristics of STR and

Firestone tires were sufficiently analogous to render the comparison apt, but they

do not point to any portion of the record containing that conclusion. And although

Plaintiffs argue that Pearl opined that the STR tires contained a defective tread



      1
        The district court deemed much of Defendants’ statement of
uncontroverted facts admitted because Plaintiffs failed to properly dispute those
facts. See Fed. R. Civ. P. 56(e)(2). Plaintiffs offer no argument on appeal
suggesting this was erroneous.

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compound, the record does not support the factual basis for Pearl’s opinion. See

Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th Cir. 2019) (“Expert

testimony cannot create a genuine issue of material fact if it rests on assumptions

that are not supported by evidence.”). Accordingly, the district court did not abuse

its discretion by excluding Pearl’s opinion that the STR tires were defective. See

Kumho Tire Co., 526 U.S. at 142 (“[T]he law grants a district court the same broad

latitude when it decides how to determine reliability as it enjoys in respect to its

ultimate reliability determination.”).

      Plaintiffs’ remaining argument also fails. Plaintiffs contend that, pursuant to

United States v. General Motors Corp., 518 F.2d 420 (D.C. Cir. 1975), the high

return rate for STR tires creates the presumption of a defect. But the D.C. Circuit’s

opinion in General Motors does not apply to this case. In General Motors, the

court addressed the government’s burden to establish a violation of the recall

provisions of the National Traffic and Motor Vehicle Safety Act of 1966

(NTMVSA). 518 F.2d at 425. The court’s reasoning turned on the text and

legislative history of that particular statute. Id. at 432–37. Thus, because the

NTMVSA “was designed as a preventative measure ‘supplementary of and in

addition to the common law of negligence and product liability,’” id. at 434

(quoting Larsen v. Gen. Motors Corp., 391 F.2d 495, 506 (8th Cir. 1968)), we

decline to extend General Motor’s rationale to Plaintiffs’ claims.


                                           4
      2. Without evidence of a defect in the STR tires, the district court concluded

that each of Plaintiffs’ claims failed. On appeal, Plaintiffs do not assert that their

state law claims do not require proof of a defect.2 Thus, they waive any challenge

to the district court’s grant of summary judgment on these claims. See Fed. R.

App. P. 28(a)(8); Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir. 2001).

However, Plaintiffs do maintain that their Magnuson-Moss breach-of-express-

warranty claims survive without evidence of a defect in the STR tires. This

argument fails. Although the Magnuson-Moss Warranty Act creates a federal

“cause of action for a warrantor’s failure to comply with the terms of a written

warranty,” Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912, 918 (9th Cir.

2005) (emphasis added), it incorporates state substantive law except where the

statute provides otherwise, Nguyen v. Nissan N. Am., Inc., 932 F.3d 811, 817 n.3

(9th Cir. 2019); Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.



      2
          At best, Plaintiffs argue that Defendants failed to satisfy their burden at
summary judgment. Again, we disagree. A moving party may satisfy its burden
by demonstrating “that the nonmoving party does not have enough evidence of an
essential element of its claim or defense to carry its ultimate burden of persuasion
at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th
Cir. 2000); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“Rule
56(c) mandates the entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”).
Defendants did that here, arguing that Plaintiffs lacked any evidence of a defect in
the absence of Pearl’s opinion. This was sufficient to meet their summary
judgment burden. See Nissan Fire & Marine Ins. Co., 210 F.3d at 1106.

                                           5
2008); see also Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 1985)

(“[E]xcept in the specific instances in which Magnuson-Moss expressly prescribes

a regulating rule, the Act calls for the application of state written and implied

warranty law, not the creation of additional federal law.”). Plaintiffs fail to point to

any provision of the statute absolving them of the need to prove that the STR tires

were defective when, as here, evidence in the record establishes that Defendants

offered only a limited written warranty for defects in workmanship and materials.

Accordingly, the district court did not err by granting summary judgment.

      3. Because summary judgment was appropriate on the entirety of the First

Amended Complaint, we do not reach Plaintiffs’ argument regarding the class

certification order. See Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1039 (9th

Cir. 1999) (en banc).

      4. We deny as moot Defendants’ pending motion for reconsideration. Dkt.

55.

      AFFIRMED.




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