FILED
NOT FOR PUBLICATION
DEC 15 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF WILLIAM D. PILGRIM; et No. 20-56073
al.,
D.C. No.
Plaintiffs-Appellants, 2:15-cv-08047-JFW-E
v.
MEMORANDUM*
GENERAL MOTORS LLC,
Defendant-Appellee.
MARC ADAMS; et al., No. 20-56290
Plaintiffs-Appellants, D.C. No.
2:15-cv-08047-JFW-E
and
ESTATE OF WILLIAM D. PILGRIM; et
al.,
Plaintiffs,
v.
GENERAL MOTORS LLC,
Defendant-Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted December 6, 2021
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
Seventeen California plaintiffs (collectively, “Plaintiffs”) appeal the district
court’s grant of summary judgment to the defendant, General Motors LLC (“New
GM”), on all of Plaintiffs’ claims. Plaintiffs purchased Chevrolet Corvette Z06s
manufactured by New GM’s now-bankrupt predecessor. They allege that valve
guides in the vehicles’ LS7 engines contained design and manufacturing defects
that caused damages. The district court issued a Minute Order striking Plaintiffs’
class allegations and Motion for Class Certification as untimely. It then granted
New GM’s motion for summary judgment on Plaintiffs’ remaining claims for
negligence, fraudulent concealment, negligent failure to warn, violation of the
California Consumer Legal Remedies Act, violation of the California Unfair
Competition Law, and violation of the Song-Beverly Consumer Warranty Act on a
variety of grounds.
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Plaintiffs’ appeals from both the district court’s class certification and
summary judgment rulings are before this panel. We affirm the district court’s
grant of summary judgment to New GM on all of Plaintiffs’ individual claims. We
therefore do not reach the class certification issue.
Summary judgment to New GM was appropriate because Plaintiffs have
failed to produce admissible evidence that their vehicles actually contained the
alleged valve guide defects. To survive a motion for summary judgment, a
plaintiff must provide evidence “such that a reasonable juror drawing all inferences
in favor of the [plaintiff] could return a verdict in [her] favor.” Zetwick v. Cnty. of
Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citations omitted). A plaintiff may not
rely solely on mere “[c]onclusory statements without factual support.” Surrell v.
Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). In addition, “[a] trial
court can only consider admissible evidence in ruling on a motion for summary
judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
Here, Plaintiffs do not meet this threshold requirement. As they concede,
the only evidence of defect they provide is expert declarations. However, none of
these declarations is admissible. Under Federal Rule of Civil Procedure 37(c)(1), a
party that fails to provide a required expert disclosure “is not allowed to use that
. . . witness to supply evidence on a motion . . . unless the failure was substantially
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justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Because Plaintiffs failed to
timely serve disclosure of expert witnesses as required under Federal Rule of Civil
Procedure 26(a)(2)(B), their expert declarations are not admissible. Those same
experts cannot be used as rebuttal experts because rebuttal testimony refers
“solely” to evidence “intended . . . to contradict or rebut” other expert testimony.
Fed. R. Civ. P. 26 (a)(2)(D)(ii). Because New GM produced no admissible expert
testimony to rebut, Plaintiffs’ expert declarations are not admissible as rebuttal
evidence.
AFFIRMED.
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