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NOT FOR PUBLICATION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

2 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

3 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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