                           NOT FOR PUBLICATION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.




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