NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TRAVIS Z. GONZALES, an individual, No. 14-56305
Plaintiff-Appellee, D.C. No.
8:13-cv-01391-CJC-RNB
v.
CARMAX AUTO SUPERSTORES, LLC, MEMORANDUM*
a Virginia Limited Liability Company; et
al.,
Defendants-Appellants.
TRAVIS Z. GONZALES, an individual, No. 14-56842
Plaintiff-Appellant, D.C. No.
8:13-cv-01391-CJC-RNB
v.
CARMAX AUTO SUPERSTORES, LLC,
a Virginia Limited Liability Company; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Cormac J. Carney, District Judge, Presiding
Argued and Submitted August 2, 2016
Pasadena, California
Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
I. Song-Beverly Act1
The Song-Beverly Act provides that “every sale of consumer goods that are
sold at retail in this state shall be accompanied by the manufacturer’s and the retail
seller’s implied warranty that the goods are merchantable.” Cal. Civ. Code § 1792.
“[A] core test of merchantability is fitness for the ordinary purpose for which such
goods are used,” which means “the product is in safe condition and substantially
free of defects.” Brand v. Hyundai Motor Am., 226 Cal. App. 4th 1538, 1546 (Ct.
App. 2014) (internal citations and quotation marks omitted).
Gonzales alleged numerous defects with the car, but failed to allege that any
of the defects persisted over time despite making adequate repair attempts, or that
the defects were so significant as to render the car incapable of providing safe and
reliable transportation. Cf. id. at 462. We affirm the district court’s dismissal of
Gonzales’s claim under the Song-Beverly Act.
1
In a separate concurrently filed opinion, we reverse the district court’s grant
of summary judgment to CarMax and grant Gonzales summary judgment on his
UCL and CLRA claims.
2
II. Fraud and Deceit
Rule 9(b) of the Federal Rules of Civil Procedure states that when alleging
fraud, “a party must state with particularity the circumstances constituting fraud or
mistake.” The district court held that Gonzales, despite being given the opportunity
to amend his complaint, failed to allege facts sufficient to meet the heightened
pleading standard for fraud claims. We therefore affirm the district court’s dismissal
of Gonzales’s fraud and deceit claim.
III. Section 11711 Claim Against Safeco
The district court dismissed Gonzales’ cause of action against Safeco under
California Vehicle Code section 17111 “because it was wholly derivative of Plaintiff’s
deficient fraud claim.” Because we agree that Gonzales’ fraud claim is deficient, we
affirm dismissal of his section 17111 claim against Safeco.
AFFIRMED.
3