                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                       JUN 8 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


    JENELLE FORD; BARRY FORD, h/w, on              No.    14-56280
    behalf of themselves and others similarly
    situated,                                      D.C. No. 2:13-cv-08335-PSG-SS

              Plaintiffs-Appellants,
                                                   MEMORANDUM*
      v.

    FORD MOTOR COMPANY, a Delaware
    Corporation,

              Defendant-Appellee.

                     Appeal from the United States District Court
                         for the Central District of California
                     Philip S. Gutierrez, District Judge, Presiding

                               Submitted June 6, 2016**
                                 Pasadena, California

Before: GOULD, MELLOY***, and HURWITZ, Circuit Judges.




*
      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 Michael J. Melloy, Senior Circuit Judge for the U.S. Court of
Appeals for the Eighth Circuit, sitting by designation.
      Jenelle and Barry Ford (“Plaintiffs”) appeal a summary judgment entered in

favor of Ford Motor Company (“FMC”) in this putative class action. Plaintiffs

raised six California-law claims and one federal claim concerning the rear axle in

their 1999 Ford Windstar minivan, which developed cracks after twelve years and

221,000 miles of use. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      1.     Plaintiffs asserted two theories of injury before the district court: (1)

that the axle failed prematurely, resulting in unwarranted replacement costs (the

“replacement theory”) and (2) that Plaintiffs “would not have purchased their

Windstar if FMC had disclosed that its rear axle was susceptible to metal fatigue”

(the “reliance theory”). All of Plaintiffs’ claims for relief rely upon one or both of

these theories.

      2.     To succeed on their replacement theory, Plaintiffs were required to

prove that a defect in the axle caused it to fail before the end of its “useful life.” See

Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008) (“Every

manufactured item is defective at the time of sale in the sense that it will not last

forever; the flip-side of this original sin is the product’s useful life.”). Plaintiffs

presented insufficient evidence that the axle was defective. Their contention that

an axle must last “indefinitely” or as long as all other parts of the vehicle fails. See

Daugherty v. Am. Honda Motor Co., Inc., 51 Cal. Rptr. 3d 118, 123 (Ct. App. 2006)

(recognizing that “[a]ll [automobile] parts will wear out sooner or later”) (quoting


                                            2
Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 250 (2d Cir. 1986)). The fact

that FMC replaced the rear axles of some Windstars with over 221,000 miles as part

of a recall does not establish that the axle in Plaintiffs’ vehicle was defective.

      3.     Plaintiffs did not argue in their opening brief that the district court erred

in rejecting the reliance theory, and mischaracterize the district court’s ruling as dicta

in their reply. That argument is therefore waived. See Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999).

      AFFIRMED.




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