Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court GOLD PEAK HOMEOWNERS ASSOCIATION, INC.,
Plaintiff - Appellant,
v. No. 23-1181 (D.C. No. 1:21-CV-03320-SKC) GAF MATERIALS, LLC, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, KELLY, and EID, Circuit Judges. _________________________________
In 2015, Gold Peak Homeowners Association contracted with GAF Materials,
LLC to obtain enough shingles to reroof forty residential buildings. Gold Peak also
obtained a Limited Warranty that disclaimed other warranties and that required, to
get coverage, notice within thirty days of any problems. In 2018, Gold Peak’s HOA
president and residents acknowledged that the shingles had excessive granule loss.
Two years later, Gold Peak notified GAF of the problem. For failing to comply with
the thirty-day notice provision, GAF denied Gold Peak coverage.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 2
Gold Peak then filed suit bringing state law claims for breaches of express and
implied warranties as well as a federal law claim for a violation of the Magnuson-
Moss Warranty Act. The district court granted GAF’s motion for summary
judgment, holding that Gold Peak (1) did not meet the Limited Warranty’s notice
requirement, (2) could not bring a claim of implied warranty because of the Limited
Warranty’s conspicuous disclaimer, and (3) could not bring a Magnuson-Moss claim
because the state claims failed. Gold Peak now appeals the three dispositions.
Finding no genuine dispute of material fact on any of its claims, we affirm.
I.
In 2015, Gold Peak Homeowners Association wanted to reroof forty of its
residential buildings. To do so, Gold Peak contracted with GAF Materials, LLC to
acquire Timberline ArmorShield II shingles for the roofing project.
Along with the shingles, Gold Peak purchased a System Plus Limited
Warranty for each of the residential buildings. GAF’s Limited Warranty provided
that Gold Peak’s “shingles will remain free from manufacturing defects that
adversely affect their perform[ance.]” App’x Vol. VII at 1925 (alteration in
original). And the Limited Warranty also included other provisions that clarified
when and how to file a claim and that expressly disclaimed other warranties.
Of relevance are two provisions. First, the Limited Warranty had a notice
provision stating that Gold Peak “must notify GAF about any claim within 30 days
after [Gold Peak] notice[s] a problem.” Id. at 1836, 1930. Second, the Limited
Warranty contained a “Sole and Exclusive Warranty” provision. Id. at 1933. That
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disclaimer was “definitionally conspicuous,” “set apart in its own section with a
heading in bold type” font, and “in the same size font as all other paragraphs on the
page.” Id. It stated, in all capital letters, “THIS LIMITED WARRANTY IS
EXCLUSIVE AND REPLACES ALL OTHER WARRANTIES . . . , WHETHER
EXPRESS OR IMPLIED, WHETHER BY STATUTE, AT LAW OR IN EQUITY,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.” Id.
Starting in 2018, Gold Peak’s residents complained about excessive granule
loss from the shingles. The Gold Peak Homeowners Association (“HOA”) president
testified that, for a period in 2018, “[a]nytime a windstorm” or “rainstorm would
come up,” residents “would have granules all over [their] patio furniture, all over the
streets, coming out of the gutters.” Id. at 1930. Indeed, the president went so far as
to say, “It was like a playground full of sand everywhere.” Id. And the president did
not just hear about the excessive granule loss once, for “whenever [the loss]
happened, people would complain.” Id.
Two years later, in August 2020, Gold Peak had the shingles inspected, and
thereafter, it made a claim under GAF’s Limited Warranty complaining that the
shingles shed granules excessively. Id. at 1926. GAF inspected the roofs and came
back to Gold Peak with a settlement offer on some of the claims. Id. Declining the
offer, Gold Peak instead filed suit. Id.
Once this case was removed from state to federal court, GAF moved for
summary judgment. Applying Colorado law, the district court granted GAF’s motion
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as to each of Gold Peak’s three claims. The court first concluded that “the
undisputed facts show[ed] that [Gold Peak] cannot establish the timely-notice
element of its prima facie case for breach of express warranty.” Id. at 1932. The
court reasoned that “[i]t is undisputed Plaintiff noticed a problem by at least 2018 but
did not notify Defendant of the problem until August 2020, years past the 30-day
notice requirement.” Id. at 1931. Next, the court concluded that the express
disclaimer in the Limited Warranty excluded and replaced any implied warranties.
And finally, reasoning that Magnuson-Moss Act claims under 15 U.S.C. § 2310(d)(1)
fall and rise with express and implied warranty claims under state law, the court held
for GAF on Gold Peak’s claims under the Act. Gold Peak timely appealed,
challenging the three grants of summary judgment on its claims.
II.
Gold Peak argues that the district court should not have granted summary
judgment on its claims for breaches of (1) an express warranty; (2) the implied
warranty of merchantability; and (3) the Magnuson-Moss Warranty Act.
Stepping into the district court’s shoes, we review the grant of summary
judgment on these issues de novo. SEC v. GenAudio Inc., 32 F.4th 902, 920 (10th
Cir. 2022). Thus, just like the district court, we “view facts in the light most
favorable to the non-moving parties” and “resolv[e] all factual disputes and
reasonable inferences in their favor.” Id. (internal quotation marks and citation
omitted). And we must affirm the grant of summary judgment if GAF can show that
“no genuine dispute as to any material fact” remains. Fed. R. Civ. P. 56(a); see Shehi
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v. Sw. Bell Tel. Co., 382 F.2d 627, 629 (10th Cir. 1967) (“[S]ummary judgment must
flow only as a matter of law from undisputed facts.”).
Importantly, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). That is
because “the requirement is that there be no genuine issue of material fact”—a fact
“that might affect the outcome of the suit under the governing law.” Id. at 248.
Hence, a “complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Barber ex
rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (citation
omitted).
III.
Gold Peak first challenges the district court’s adverse summary judgment
ruling on Gold Peak’s claims for breach of an express warranty. To determine what
state law applies to these claims, we look to Colorado’s choice-of-law rules because
“that is where the district court sat.” Mem’l Hosp. of Laramie Cnty. v. Healthcare
Realty Tr. Inc., 509 F.3d 1225, 1229 (10th Cir. 2007). Colorado applies the law of
the state “chosen by the parties unless there is no reasonable basis for their choice or
unless applying the law of the state so chosen would be contrary to the fundamental
policy of a state whose law would otherwise govern.” SDJ Ins. Agency, L.L.C. v. Am.
Nat. Ins. Co., 292 F.3d 689, 692 (10th Cir. 2002) (quoting Hansen v. GAB Bus.
Servs., Inc., 876 P.2d 112, 113 (Colo. App. 1994)). The parties agree that Colorado
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law applies, and they do not point to any other law that would otherwise govern or be
contrary to Colorado’s fundamental policy. Thus, Colorado law governs.
Under Colorado law, to state a claim for breach of express warranty, a plaintiff
must prove (1) the existence of a warranty, (2) the breach of the warranty, (3) that the
breach proximately caused the losses claimed as damages, and (4) that the defendant
received timely notice of the breach. Platt v. Winnebago Indus., Inc., 960 F.3d 1264,
1271 (10th Cir. 2020) (applying Colorado law). The success of Gold Peak’s express
warranty claims hinges on the last requirement: whether Gold Peak gave GAF timely
notice of the breach.
The plain terms of the Limited Warranty required Gold Peak to notify GAF
about any claim within thirty days of noticing a “problem” with the shingles. App’x
Vol. VII at 1836, 1930. That provision in mind, Gold Peak argues that it provided
notice on August 24, 2020, after becoming aware of a problem from an inspection
that took place on August 13, 2020. If August 13, 2020, was the earliest time Gold
Peak was aware of a problem, then Gold Peak would be correct that it complied with
GAF’s notice provision. But the only way we could reach its conclusion would be to
overlook the undisputed fact that Gold Peak became aware of its shingles problem
two years before its 2020 inspection.
As understood from undisputed facts in the record, Gold Peak became aware
of its shingles problem in 2018. The president of the Gold Peak HOA testified that,
for a period in 2018:
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Anytime a windstorm came up, anytime a rainstorm would come up, you would have granules all over your patio furniture, all over the streets, coming out of the gutters. It was like a playground full of sand everywhere. And whenever that happened, people would complain.
App’x Vol. VII at 1930. Gold Peak, via the HOA board, noticed in 2018 that the
shingles would produce a substantial amount of granule loss. And the resulting
“playground full of sand” was a problem. Id. Yet Gold Peak did not provide notice
to GAF at the time.
Based on these—again, undisputed—facts, Gold Peak failed to provide thirty
day’s notice to GAF after becoming aware of a problem in 2018. Gold Peak waited
until August 2020, two years “after [it] notice[d] a problem.” Id. at 1836, 1930.
Consequently, Gold Peak failed to meet the notice element of an express warranty
claim. We thus affirm the grant of summary judgment on the claim because no other
facts would “affect the outcome of the suit” with that element missing. Anderson,
477 U.S. at 247–48; see Barber ex rel. Barber, 562 F.3d at 1228.
Gold Peak makes several arguments attempting to overcome the undisputed
facts. In the end, it cannot get around them.
Trying to circumvent its HOA president’s statements about the shingles’
conditions in 2018, Gold Peak first points to GAF’s Technical Bulletins, which
indicated that granule loss after installation was “normal.” App’x Vol. II. at 554.
But, on that same bulletin, immediately under the “normal” language that Gold Peak
relies on, the bulletin provides another header, titled: “How Do I Know If I Have A
7 Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 8
Problem?” Id. And the section under that header clarifies that granule loss can only
be “normal” for so long.
Indeed, in very clear terms, the bulletin states that if “significant” granule loss
continues “[s]everal months after application,” Gold Peak should “contact the GAF
Warranty Services Department.” Id. Gold Peak’s HOA president acknowledged the
problem of granule loss in 2018, three years after Gold Peak purchased GAF’s
shingles and warranty. That being so, even if we look to the bulletin as Gold Peak
would have us do, no material dispute remains. Under the bulletin’s terms, it was not
“normal,” App’x Vol. II at 554, for Gold Peak to have a “playground full of sand[’s]”
worth of granule loss, App’x Vol. VII at 1930, take place years after installment.
Rather, it was “significant” granule loss that continued “[s]everal months after
application,” about twenty-four months, give or take. Id.
Gold Peak next states that GAF’s Master Elite Contractor told Gold Peak that
granule loss was normal. But nothing Gold Peak points to in the record supports that
fact. Gold Peak cites to GAF’s bulletin, Aplt. Br. at 18 (citing App’x Vol. II at 554–
55), various statements about GAF employees’ roles, id. (citing App’x Vol. II at 404;
App’x Vol. V at 1225), and testimony that Gold Peak was aware of a granule loss
problem after a storm in 2019, id. (citing App’x Vol. II at 586).
The closest thing that Gold Peak refers to is testimony that a company called
“RE” told them that “a little slough off [was] to be expected.” Id. (citing App’x Vol.
V at 1217). Aside from the fact that GE is not a GAF Master Elite Contractor, the
record is unclear when RE communicated this to Gold Peak and how long “a little
8 Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 9
slough off [was] to be expected.” App’x Vol. V at 1217. And what Gold Peak faced
in 2018 was not a “little” loss by any means. Id. Simply put, a “playground full of
sand[’s]” worth of granule loss three years after purchasing the shingles was not a
little slough off. App’x Vol. VII at 1930. It was a problem.
Ultimately, Gold Peak’s arguments do not get around the undisputed facts:
Gold Peak noticed significant granule loss years after the shingles’ installation after
receiving complaints from its homeowners and HOA president. As such, Gold
Peak’s attempt to plead ignorance at the sight of the problem back in 2018 does not
get it anywhere.
Next, Gold Peak takes issue with how to define the term “problem” in its
notice provision, which provides that Gold Peak “must notify GAF about any claim
within 30 days after [Gold Peak] notice[s] a problem.” Id. at 1836, 1930. It argues
that under the correct definition of a “problem,” Gold Peak did not actually identify
one until its inspection on August 13, 2020.
First off, GAF’s bulletin—the one that Gold Peak points us to—defines the
term “problem.” Again, it clarifies that granule loss “[s]everal months after
application” is a problem for which Gold Peak should “contact the GAF Warranty
Services Department.” App’x Vol. II at 554. And under that definition, Gold Peak
became aware of a problem in 2018. Id.
Secondly, even putting aside the bulletin, the term’s plain meaning leads us to
the same outcome. Colorado courts “look to the plain meaning of the term” by
looking to, among other resources, the dictionary when a contract does not provide a
9 Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 10
definition of a term. Smith v. State Farm Mut. Auto. Ins. Co., 399 P.3d 771, 776
(Colo. App. 2017); see Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 950 (Colo.
App. 2011) (“In reviewing a contract, we must enforce the plain meaning of the
contract terms.”). With that in mind, the term “problem” means a “personal matter
that causes one difficulty or needs to be dealt with.” Problem, Am. Heritage
Dictionary of the Eng. Language 1404 (2011).
That definition does not change the outcome here. The “playground full of
sand” falling from Gold Peak’s shingles for a period in 2018, App’x Vol. VII at
1930, amounted to a “matter that cause[d] one difficulty [and] need[ed] to be dealt
with”—a matter of which it should have notified GAF. Problem, Am. Heritage
Dictionary, at 1404. We find that the complaints about “granules all over [their]
patio furniture, all over the streets, [and] coming out of the gutters” gave rise to a
“problem,” as plainly understood. App’x Vol. VII at 1930.
Next, Gold Peak shifts gears. It argues that the district court failed to assess if
GAF suffered any prejudice from Gold Peak’s allegedly late notice. Relying on
Palmer v. A.H. Robins Co. Inc., 684 P.2d 187 (Colo. 1984), Gold Peak argues that
“the Colorado Supreme Court has previously applied the Notice-Prejudice rule to
express warranty claims.” Aplt. Br. at 25. In all, Gold Peak wants us to require GAF
to demonstrate prejudice and to hold that absent prejudice, a party’s failure to comply
with a notice requirement is excused for express warranty claims. But Colorado
caselaw indicates we cannot.
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True, Palmer dealt with “notice” and mentioned “prejudice” in a footnote. 684
P.2d at 207 n.3. But nothing in Palmer, that footnote included, indicates that the
Colorado Supreme Court adopted a rule requiring prejudice in cases involving
express warranty claims. Palmer does not get Gold Peak anywhere.
Nonetheless, Gold Peak turns to three insurance cases that adopt the notice-
prejudice rule. See, e.g., Clementi v. Nationwide Mut. Fire Ins. Co., 16 P.3d 223, 230
(Colo. 2001) (“[I]nsurer prejudice should now be considered when determining
whether noncompliance with a [] policy’s notice requirements vitiates coverage.”);
Friedland v. Travelers Indem. Co., 105 P.3d 639, 647 (Colo. 2005) (applying the
notice-prejudice rule to a tort liability insurance policy); Gregory v. Safeco Ins. Co.
of Am., 545 P.3d 942, 949 (Colo. 2024) (extending the notice-prejudice rule “to
occurrence policies in the context of first-party homeowners’ property insurance
claims”).1
Relying on those three cases, Gold Peak asks us to extend the application of
the notice-prejudice rule from the insurance context to the express warranty context.
Applying the current Colorado law before us, we decline that invitation.
The Colorado Supreme Court and its lower courts have specifically limited the
application of the notice-prejudice rule to uninsured/underinsured motorist policies
and occurrence-based first-party property insurance policies. See Gregory, 545 P.3d
1 While this case was pending on appeal, the Colorado Supreme Court decided Gregory, 545 P.3d 942. Both parties have written supplemental 28(j) letters on how, if at all, Gregory affects the case here. See Aplt. Fed. R. App. P. 28(j) Letter at *1–2 (Mar. 14, 2024); Aple. Fed. R. App. P. 28(j) Letter at *1–2 (Mar. 20, 2024). 11 Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 12
at 949 (only applying the notice-prejudice rule to “such policies”). In both situations,
the rule has only ever applied to parts of one context—insurance policies. Although
“such policies must follow” the notice-prejudice rule, no Colorado court decision has
ever applied the rule to a product warranty. Id. (emphasis added). And unlike an
insurance policy, the GAF warranty did not require Gold Peak to pay premiums, nor
did it insure a risk. See id. at 949.
Moreover, what led the Colorado Supreme Court to apply the notice-prejudice
rule were public policy justifications that all pertained to insurance claims, such as
“(1) the adhesive nature of insurance contracts, (2) the public policy objective of
compensating tort victims, and (3) the inequity of the insurer receiving a windfall due
to a technicality.” Clementi, 16 P.3d at 229. Again, this breach-of-warranty case
does not involve insurance. See id.; Gregory, 545 P.3d at 949. Nor does it involve
the “objective of compensating tort victims,” Clementi, 16 P.3d at 229, or an
objective to “cover the cost” of property damage covered by homeowners’ insurance,
Gregory, 545 P.3d at 949.
All considered, we decline to apply the notice-prejudice rule to the warranty
here because no Colorado court has ever extended the rule’s application outside of
the insurance context. Exercising diversity jurisdiction, we must “predict what the
state supreme court would do.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666
(10th Cir. 2007). In doing so, we refrain from extending the notice-prejudice rule to
uncharted waters that no Colorado case has ever touched. That is especially so
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because Colorado’s public policy justifications for adopting the rule in insurance
contexts do not neatly apply to a warranty like in this case.
For these reasons, we affirm the district court’s grant of summary judgment on
Gold Peak’s express warranty claim. No genuine dispute as to any material fact
remains. Fed. R. Civ. P. 56(a).
IV.
Gold Peak next challenges the district court’s entry of summary judgment for
GAF on Gold Peak’s claims for breach of the implied warranty of merchantability.
As before, we look to Colorado law to assess these claims. Under Colorado law,
every sale-of-goods contract contains this implied warranty if the seller is “a
merchant with respect to goods of that kind.” Colo. Rev. Stat. § 4-2-314(1).
That said, the warranty is not foolproof. A merchant may disclaim the implied
warranty of merchantability so long as it does so (1) with sufficient language and
(2) conspicuously. Id. § 4-2-314(3); see id. § 4-2-316(2) (“[T]he language must
mention merchantability and in case of a writing must be conspicuous.”). Indeed, a
phrase like, “There are no warranties which extend beyond the description on the
face hereof,” sufficiently disclaims an implied warranty. Id. And, as Colorado law
explains, whether a disclaimer is conspicuous “is a decision for the court,” not
anyone else. Id. § 4-1-201(b)(10). In making that determination, Colorado law also
defines “conspicuous” as “written, displayed, or presented that a reasonable person
against which it is to operate ought to have noticed it.” Id.
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In this case, Gold Peak argues that the implied warranty of merchantability
protects its shingles. In response, GAF argues that its contract expressly disclaimed
any such implied warranty. Assessing this issue de novo, GenAudio Inc., 32 F.4th at
920, we determine that (1) GAF’s disclaimer uses sufficient language and (2) the
disclaimer presents that language conspicuously, Colo. Rev. Stat. § 4-2-314(3).
First, we assess whether the disclaimer contains sufficient language. On
appeal, Gold Peak concedes that the disclaimer contained in the Limited Warranty
expressly mentions merchantability as required by law. Aplt. Br. at 32 (“GAF’s []
disclaimer did specifically reference merchantability as required by Colorado law.”).
Given that no dispute exists on whether the language is sufficient, the question then
turns on whether the disclaimer was conspicuous. The answer: it was.
With a bolded header titled, “Sole and Exclusive Warranty,” the disclaimer
states in all capital letters that “THIS LIMITED WARRANTY IS EXCLUSIVE AND
REPLACES ALL OTHER WARRANTIES, . . . INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.” App’x Vol. II at 550. Among the other contract provisions, no other
section has all capital letters like this disclaimer. And although small, the text of this
disclaimer is readily readable.
Gold Peak argues that no reasonable person would have noticed the disclaimer.
Gold Peak argues for a bigger header in a bold-type font and color different than
every other header, with symbols or other marks surrounding it. But conspicuous
does not mean the most glaringly obvious thing on the page; rather, Colorado law
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clarifies that we need only determine whether a reasonable person would have
noticed it. Colo. Rev. Stat. § 4-1-201(b)(10). And here, a reasonable person would
have.
We recognize that the text size of the disclaimer could have been bigger. But
the text, at least to a reasonable person, “although small, does not require a
magnifying glass.” Raup v. Vail Summit Resorts, Inc., 734 F. App’x 543, 548 (10th
Cir. 2018) (concluding that a warning in “five-point font” was sufficiently
conspicuous under Colo. Rev. Stat. § 4-1-201 because its terms were printed in
capital letters).2 In contrast to the terms in regular, sentence-case font that surround
the disclaimer, the disclaimer has a bolded header “Sole and Exclusive Warranty,”
and its terms are printed in all capital letters. App’x Vol. II at 550 (“THIS LIMITED
WARRANTY IS EXCLUSIVE AND REPLACES ALL OTHER WARRANTIES.”).
Hence, GAF printed its terms “so as to attract attention to the essentials of the
waiver.” Raup, 734 F. App’x at 548 (concluding that small text was “conspicuous”
even though someone who would need “reading glasses to read a newspaper would
need such glasses to read the language”). Because of the disclaimer’s different text
type, it was “written, displayed, [and] presented” so that “a reasonable person against
which it is to operate ought to have noticed it.” Colo. Rev. Stat. § 4-1-201(b)(10).
2 Recognizing that this unpublished decision is not binding, we rely on it only for its persuasive value. See, e.g., United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015). 15 Appellate Case: 23-1181 Document: 81-1 Date Filed: 10/02/2024 Page: 16
As such, the disclaimer is sufficiently conspicuous, and we affirm the district court’s
grant of summary judgment on the implied warranty claim.
V.
Gold Peak’s last claim falls under the Magnuson-Moss Warranty Act. The Act
provides a private right of action to a consumer harmed by a supplier’s failure to
comply with a warranty—either express or implied. 15 U.S.C. § 2310(d)(1). “Where
Magnuson-Moss claims are brought for breach of a limited warranty, as here, we
look to state law to determine the causes of action and the remedies available.” Platt,
960 F.3d at 1269. That being the case, claims under the Act “stand or fall” with state
warranty claims. Id. (citation omitted). Because Gold Peak’s claims for breach of
express and implied warranties fail as a matter of law, so too do Gold Peak’s claims
under the Magnuson-Moss Warranty Act. Thus, we affirm the district court’s grant
of summary judgment on this claim.
VI.
For these reasons, we AFFIRM.
Entered for the Court
Allison H. Eid Circuit Judge