Jacob Beaty v. Ford Motor Company ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB BEATY; JESSICA BEATY, on No. 20-35141
behalf of themselves and all others similarly
situated, D.C. No. 3:17-cv-05201-RBL
Plaintiffs-Appellants,
MEMORANDUM*
v.
FORD MOTOR COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted March 10, 2021
San Francisco, California
Before: GOULD and FRIEDLAND, Circuit Judges, and ERICKSEN,** District
Judge.
Plaintiffs-Appellants Jessica and Jacob Beaty (“the Beatys”) appeal from the
district court’s grant of summary judgment in favor of Defendant-Appellee Ford
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
Motor Company (“Ford”).
Ford started manufacturing cars with panoramic sunroofs (“PSRs”) in 2007,
and soon after began receiving complaints from customers who alleged that their
PSRs exploded without warning. Ford later added PSRs to the Ford Escape model
line. In 2017, Jessica Beaty was driving her 2013 Ford Escape when the sunroof
suddenly shattered for no apparent reason, causing glass to fall on Jessica and her
infant daughter. After the incident, the Beatys filed a putative class action
complaint against Ford, asserting claims for fraudulent concealment under
Washington common law and violations of the Washington Consumer Protection
Act (“CPA”), Wash. Rev. Code § 19.86.010 et seq. On appeal, the Beatys
challenge the district court’s determinations that a reasonable factfinder could not
conclude: (1) that Ford knew about the risk that its PSRs could spontaneously
explode on the 2013 Ford Escape, the first Escape model to include a PSR option;
and (2) that the tendency of Ford PSRs to spontaneously explode is not a material
defect.
We review a district court’s grant of summary judgment de novo. Badgley v.
United States, 957 F.3d 969, 974 (9th Cir. 2020). We must determine, “viewing
the evidence in the light most favorable to the non-movant, [whether] there is no
genuine issue of material fact,” and whether the district court applied the relevant
substantive law. See Frudden v. Pilling, 877 F.3d 821, 828 (9th Cir. 2017).
2
Because this is a diversity case, we “approximate state law as closely as possible in
order to make sure that the vindication of the state right is without discrimination
because of the federal forum.” Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th
Cir. 2017) (citation omitted). We are “solely guided by” state law as we believe
Washington’s highest court would apply it. K F Dairies, Inc. & Affiliates v.
Fireman’s Fund Ins. Co. (In re K F Dairies, Inc. & Affiliates), 224 F.3d 922, 924
(9th Cir. 2000). We have jurisdiction under 28 U.S.C. § 1291. We reverse and
remand.
1. We conclude that there is a triable issue of material fact regarding
whether Ford knew about the risk that PSRs in its 2013 Ford Escape model would
spontaneously shatter.1 Under Washington law, a common-law fraudulent
1
For the first time on appeal, Ford contends that the Beatys’ proffered evidence of
pre-sale customer complaints is insufficient to show that Ford knew about the
sunroof problem on any of its cars. Specifically, Ford maintains that the Beatys
improperly relied on customer complaints that post-dated their purchase, involved
standard sunroofs, or were determined to have been caused by an external impact.
According to Ford, such complaints are irrelevant to the issue of the company’s
knowledge of a potential defect in 2013 Ford Escape PSRs, and after these
complaints are disregarded, the district court decision can be affirmed because the
Beatys did not cite to an “unusually high” number of relevant, pre-sale complaints
in their opening brief that would have put Ford on notice of a defect. “[W]e
ordinarily do not review issues raised for the first time on appeal,” see Pfingston v.
Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 2002), but we do “have discretion
to review issues not previously raised if ‘the issue presented is purely one of law
and either does not depend on the factual record developed below, or the pertinent
record has been fully developed.’” Id. (quoting Bolker v. Comm’r, 760 F.2d 1039,
1042 (9th Cir. 1985)). Here, Ford never raised this argument in the district court,
3
concealment claim requires that “the vendor has knowledge of the [concealed]
defect.” Alejandre v. Bull, 153 P.3d 864, 872 (Wash. 2007) (en banc). Similarly,
under the CPA, a duty to disclose arises only when the seller has knowledge of a
latent defect. See Short v. Hyundai Motor Co., 444 F. Supp. 3d 1267, 1280–81
(W.D. Wash. 2020). Pre-sale customer complaints to both Ford and the National
Highway Traffic Administration (“NHTSA”) create a triable issue as to whether
Ford knew that its PSRs were prone to spontaneously explode under ordinary use.
Under Washington law, pre-sale complaints can “amount[] to knowledge” of the
defect. Griffith v. Centex Real Est. Corp., 969 P.2d 486, 493 (Wash. Ct. App.
1998). Where pre-sale complaints are made directly to the manufacturer, and
therefore a court can be sure that the manufacturer defendant received them, the
complaints are circumstantial evidence that the defendant is on notice of the defect.
See Williams v. Yamaha Motor Co., 851 F.3d 1015, 1027 (9th Cir. 2017).
Ford next contends that even if customer complaints can be enough for a
rational juror to find knowledge, the Beatys’ claims fail because the complaints
involved PSRs on a different model of car. We disagree. “[W]hen a plaintiff
attempts to introduce evidence of other accidents” to prove the defendant’s “notice
of [a] defect,” “[a] showing of substantial similarity is required.” Cooper v.
and we decline to reach this “alternate, fact-intensive bas[is] for affirming.” See
Petersen v. Boeing Co., 715 F.3d 276, 283 (9th Cir. 2013).
4
Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991). Because the
purpose of the “substantial similarity” inquiry is to determine relevance in the
context of a defective product,2 the relevant similarities are properly defined in
terms of the defect at issue. See id.Here, the Beatys presented evidence based on customer complaints that
PSRs in Ford-manufactured cars were prone to shatter for no apparent reason—the
specific defect at issue. The Beatys’ expert in glass failure analysis opined that this
defect exists in all Ford PSRs because they are built the same way by the same two
manufacturers, and thus share five “common, defective design features, including
their size, thickness, curvature, connection to the vehicles’ unibody frames, and use
of ceramic paint or frit.”3 Ford maintains that its expert “demonstrated that there
are significant differences between the Escape PSR and the PSRs in other vehicles
about which customers complained,” but the Beatys’ expert disputes this, asserting
that the differences Ford relies upon are merely cosmetic and “immaterial” to the
defect at issue. Though substantial similarity means something more than
2
Ford also contends that there is no evidence Ford knew that their shattering PSRs
were defective, i.e., no evidence Ford knew they shattered for no apparent reason,
as opposed to knowing the PSRs shattered only when struck by road debris. Ford’s
argument is unpersuasive because there is a genuine dispute of material fact as to
whether Ford could have believed that rock strikes caused all the reported PSR
explosions.
3
Because portions of the record have been filed under seal, we refer to those
sections in general terms.
5
similarity “[a]t a very high level of generality,” Berkic v. Crichton, 761 F.2d 1289,
1293 (9th Cir. 1985), the Beatys’ competing expert report presented sufficient
rebuttal evidence to create a triable issue of fact. See Direct Techs., LLC v. Elec.
Arts, Inc., 836 F.3d 1059, 1067 (9th Cir. 2016) (“If [Ford’s expert] said one thing
and [the Beatys’ expert] said another on the same subject, it is the role of the jury,
not a court on summary judgment, to determine the facts.”). Viewing the evidence
in the light most favorable to the Beatys, as we must, a reasonable juror could find
that Ford knew that the PSR defect would persist in the substantially similar PSRs
installed in the 2013 Ford Escape. See Cooper, 945 F.2d at 1105.
2. We also conclude that a reasonable juror could find that the risk of a
spontaneously shattering PSR is material to consumers under Washington law.
Materiality is an element of both of the Beatys’ claims. A claim under the CPA
involves an “unfair or deceptive act or practice”; “[i]mplicit in the definition of
‘deceptive’ under the CPA is the understanding that the practice misleads or
misrepresents something of material importance.” Nguyen v. Doak Homes, Inc.,
167 P.3d 1162, 1166 (Wash. Ct. App. 2007) (alteration in original) (citation
omitted). Similarly, a party engages in fraud “if it conceals a material fact from the
other party.” Wash. Mut. Sav. Bank v. Hedreen, 886 P.2d 1121, 1123 (Wash.
1994) (en banc). A material fact is one “to which a reasonable person would attach
6
importance in determining his or her choice of action in the transaction in
question.” Aspelund v. Olerich, 784 P.2d 179, 183 (Wash. Ct. App. 1990).
Rather than focusing on what Washington consumer-protection law requires,
the district court applied a standard of materiality applicable to NHTSA, a
government body. Even if, as Ford contends, the district court did not hold that the
Beatys had to “formally satisfy any federal governmental standard,” the district
court’s language suggests that it viewed its materiality analysis in those terms. The
district court cited United States v. General Motors Corp., 656 F. Supp. 1555, 1579
(D.D.C. 1987), a district court order interpreting standards applicable to NHTSA,
and then stated: “[V]iewed in the NHTSA’s ‘severity, frequency, and
consequences’ context . . . the Court cannot conclude that the defect at issue here
was material, if it was a defect at all.”
The NHTSA materiality standard as articulated in General Motors is
inconsistent with Washington consumer-protection law. First, Washington law
does not require a risk to safety, much less an “unreasonable” one. The district
court erred by couching its materiality analysis in whether the risk of shattering is
an “unreasonable[] . . . safety risk” under the NHTSA standards. In Griffith, a
Washington appeals court explained that “[t]he purposes of the CPA—to protect
members of the public from injury in their property or business by reason of unfair
or deceptive acts and practices in trade or commerce—would hardly be served if
7
deception were not actionable unless the consumers’ very lives were at stake.” 969
P.2d at 493. Second, unlike the brakes at issue in General Motors, a consumer
does not need a panoramic sunroof to operate a car—it is a luxury accessory for
which consumers pay a premium of between one thousand and several thousand
dollars. So whether a consumer would consider PSR explosions to be a material
fact—i.e., any fact “to which a reasonable person would attach importance,” see
Aspelund, 784 P.2d at 183—should be seen through this lens. By failing to analyze
the Beatys’ materiality claim under the broader standards underlying Washington
consumer-protection law, the district court erred as a matter of law.
Finally, even if the district court did not apply an erroneous standard of
materiality, there is a triable issue of fact as to whether the PSR shattering issue
would be material to a reasonable consumer. Ford makes much of its calculated
failure rate of 0.05%,4 but a reasonable juror could find that even a small risk that a
PSR might explode without warning is a material fact, given that the practical
question is whether to purchase a luxury accessory at a premium. The Beatys
produced sufficient evidence that Ford’s PSRs fail prematurely and in unexpected
ways, which is contrary to consumer expectations. See Griffith, 969 P.2d at 493(noting that purchasers expected high quality exterior finishes but received
prematurely peeling paint).
4
The Beatys contest this failure rate as underinclusive.
8
Other carmakers and NHTSA have also recognized that the distraction
caused by an unexpected loud explosion and sudden shower of glass “could
distract the driver” and create “the risk of a crash.” Though Ford contends that no
serious injuries have occurred yet, it is reasonable to assume that a consumer will
attach importance to traumatic occurrences that result in “only” near-misses and
relatively minor abrasions. In fact, as Jessica Beaty explained, “driving around
with something that could randomly occur again” is “stressful” and prevents her
from “us[ing] the car as intended.” The Beatys have produced sufficient evidence
to preclude summary judgment on materiality. See SEC v. Phan, 500 F.3d 895,
908 (9th Cir. 2007) (“Materiality typically cannot be determined as a matter of
summary judgment. . . .”).
REVERSED AND REMANDED.
9