Living the Dream Alaska, LLC v. Mercedes-Benz USA, LLC ( 2021 )


Menu:
  •                              NOT FOR PUBLICATION                         FILED
    UNITED STATES COURT OF APPEALS                     OCT 26 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LIVING THE DREAM ALASKA, LLC,                   No.    20-35816
    Plaintiff-Appellant,          D.C. No. 3:18-cv-00235-JWS
    v.
    MEMORANDUM*
    MERCEDES-BENZ USA, LLC,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Alaska
    John W. Sedwick, District Judge, Presiding
    Argued and Submitted October 5, 2021
    Seattle, Washington
    Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
    Living the Dream Alaska, LLC (“LTD”) appeals the district court’s
    summary judgment in favor of Mercedes-Benz USA, LLC (“MBUSA”). We have
    jurisdiction over this action.1 Reviewing de novo, see Bravo v. City of Santa
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    1
    Although we raised the amount in controversy at argument, we conclude that we
    have jurisdiction because it is not clear to a legal certainty from the face of the
    complaint that the amount in controversy requirements for diversity jurisdiction
    Maria, 
    665 F.3d 1076
    , 1083 (9th Cir. 2011), we affirm.
    When interpreting an issue of state law without guidance from the state’s
    highest court, “a federal court must predict how the highest state court would
    decide the issue using intermediate appellate court decisions, decisions from other
    jurisdictions, statutes, treatises, and restatements as guidance.” PSM Holding
    Corp. v. Nat’l Farm Fin. Corp., 
    884 F.3d 812
    , 820 (9th Cir. 2018) (quoting Ariz.
    Elec. Power Co-Op., Inc. v. Berkeley, 
    59 F.3d 988
    , 991 (9th Cir. 1995)).
    To prevail under Alaska’s lemon law, LTD must show that MBUSA was
    “unable to conform the motor vehicle to an applicable express warranty after a
    reasonable number of attempts.” 
    Alaska Stat. § 45.45.305
    . Citing to cases brought
    under California’s similar lemon law, LTD argues that an attempt occurs when a
    consumer offers the manufacturer a reasonable opportunity to repair the vehicle.
    See Oregel v. Am. Isuzu Motors, Inc., 
    109 Cal. Rptr. 2d 583
    , 590 (Cal. Ct. App.
    2001) (citation omitted); see also Robertson v. Fleetwood Travel Trailers of Cal.,
    Inc., 
    50 Cal. Rptr. 3d 731
    , 741 (Cal. Ct. App. 2006) (“Each occasion that an
    opportunity for repairs is provided counts as an attempt, even if no repairs are
    actually undertaken.” (citation omitted)).
    and federal question jurisdiction pursuant to the Magnuson-Moss Warranty Act are
    not satisfied. See St. Paul Mercury Indem. Co. v. Red Cab Co., 
    303 U.S. 283
    , 289
    (1938); Kelly v. Fleetwood Enters., 
    377 F.3d 1034
    , 1037 (9th Cir. 2004).
    2
    But we need not address the proper interpretation of Alaska’s lemon law
    because even under LTD’s interpretation there is no genuine dispute that MBUSA
    did not make “a reasonable number of attempts” to repair LTD’s Sprinter van
    under 
    Alaska Stat. § 45.45.305
    .
    The district court correctly concluded that the record does not support a
    reasonable inference that a repair attempt occurred on February 7, 2017. Stuart
    Hallam, the general manager of LTD, presented the Sprinter van to the MBUSA
    dealership in Spokane, but the dealership could not perform the repair until the
    following week because it was out of Loctite 648. Hallam decided not to wait to
    allow the repair to be completed in Spokane. Because Hallam did not wait in
    Spokane for the Loctite to arrive, MBUSA did not have an opportunity to repair
    the vehicle at that time.
    The district court also correctly concluded that the record does not support a
    reasonable inference that more than one repair attempt occurred at the dealership in
    Farmington, Utah. Hallam brought the vehicle to the dealership on February 28,
    2017, and the dealership ordered a new driveshaft. The van was brought back on
    March 22, and the dealership took until March 29 to complete its work. During
    this period, MBUSA had only one opportunity to repair the van, and therefore only
    one attempt occurred. See Robertson, 
    50 Cal. Rptr. 3d at 741
    .
    This one attempt is insufficient under Alaska’s lemon law. See Alaska Stat.
    3
    § 45.45.305 (requiring “reasonable number of attempts” (emphasis added)); id. §
    45.45.320 (providing that a presumption of a reasonable number of attempts arises
    if the vehicle “has been subject to repair three or more times” (emphasis added));
    Silvio v. Ford Motor Co., 
    135 Cal. Rptr. 2d 846
    , 847 (Cal. Ct. App. 2003)
    (reasoning from use of plural “attempts” in lemon law that more than one repair
    attempt is required to entitle consumer to remedies). Accordingly, the district
    court properly granted summary judgment on LTD’s lemon law claim.
    Because LTD’s remaining claims turn on the success of its lemon law
    argument, we need not separately address those claims.
    AFFIRMED.2
    2
    MBUSA’s motion to take judicial notice is denied. Dkt. 24.
    4