FILED
NOT FOR PUBLICATION
JUN 08 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM PHILIPS, individually and on No. 17-15323
behalf of all others similarly situated; et
al., D.C. No. 5:14-cv-02989-LHK
Plaintiffs-Appellants,
MEMORANDUM*
v.
FORD MOTOR COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted May 18, 2018**
San Francisco, California
Before: N.R. SMITH and FRIEDLAND, Circuit Judges, and LYNN,*** Chief
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 Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
William Philips, Jaime Goodman, and Alison Colburn (collectively
“Appellants”) appeal the dismissal of their California state law claims, the
exclusion of their expert witness economist, and the denial of class certification.
We affirm.
1. Appellants abandoned their individual claims on appeal. Appellants’
opening brief never asserts error in the district court’s adverse summary judgment
ruling on Appellants’ individual claims. Indeed, Appellants failed even to ask for
reversal of the summary judgment ruling, waiving any claim of error and mooting
the remaining claims. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005).
2. Permissible exclusion of Appellants’ economic expert. Even assuming
Appellants’ briefing on the exclusion of their economic expert, Dr. Arnold, could
be understood as implicitly challenging the summary judgment ruling on their
individual claims, the district court did not abuse its discretion in excluding Dr.
Arnold’s testimony and report. To be admissible, an expert’s testimony must be
“based on sufficient facts or data,” be “the product of reliable principles and
methods,” and “reliably appl[y] the relevant principles and methods to the facts of
the case.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir.
2014) (citing Fed. R. Evid. 702). Dr. Arnold’s analysis did not apply the expected
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utility theory outlined in his report. Accordingly, the district court permissibly
excluded Dr. Arnold’s testimony, because the methodology he did apply (in
reaching his conclusion) was not demonstrably reliable under any of the relevant
criteria: “testability, publication in peer-reviewed literature, known or potential
error rate, and general acceptance.” City of Pomona, 750 F.3d at 1044.
Accordingly, Appellants’ arguments with respect to class certification are moot,
because the proper dismissal of their individual claims leaves them without a stake
in the outcome of the proceedings. See, e.g., Campion v. Old Republic Prot. Co.,
775 F.3d 1144, 1146 (9th Cir. 2014) (holding that putative class representatives
lack of “financial interest in class certification” moots an appeal of the certification
issue).
3. Denial of motion to file supplemental damages report. Even assuming the
district court abused its discretion in denying leave to file a renewed class
certification motion with a new damages analysis, Appellants waived any basis to
challenge this decision when they declined the opportunity to submit a new
damages analysis on the individual claims. Instead, Appellants rested on Dr.
Arnold’s original report, accepted an adverse judgment on their individual claims,
and appealed. Because Dr. Arnold’s report was properly excluded, Appellants
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cannot succeed in overturning summary judgment on their individual claims, thus
mooting any issues relating to class certification. Campion, 775 F.3d at 1146.
4. Dismissal of the injunctive relief claims was proper. The equitable
remedies available under the Unfair Competition Law (UCL) and the Consumer
Legal Remedies Act are “subject to fundamental equitable principles, including
inadequacy of the legal remedy.” Prudential Home Mortg. Co. v. Superior Court,
78 Cal. Rptr. 2d 566, 573 (Ct. App.), as modified on denial of reh’g (Oct. 29,
1998) (deeming alternative “statutory remedies . . . adequate” and “precluding
equitable relief under the Business and Professions Code”); cf. Cortez v. Purolator
Air Filtration Prods. Co., 999 P.2d 706, 717 (Cal. 2000) (“[E]quitable defenses
may be considered by the court when the court exercises its discretion over which,
if any, remedies authorized by [the UCL] should be awarded.” (emphasis added)).
Accordingly, the district court correctly determined that Appellants were required
to plead the inadequacy of their legal remedies to state a claim for injunctive relief.
Appellants do not challenge the district court’s holding that their complaint failed
to plausibly state the inadequacy of their legal remedies, so they have waived any
argument that they alleged sufficient facts to plausibly establish the inadequacy of
their legal remedies. See Kama, 394 F.3d at 1238.
AFFIRMED.
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