Filed 2/27/13 Brown v. K Motors CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



TODD BROWN,                                                         D058704

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2009-00085519-CU-BC-CTL)
K MOTORS, INC.,

         Defendant and Respondent.


         APPEAL from a judgment and order of the Superior Court of San Diego County,

Joel M. Pressman, Judge. Affirmed in part; reversed in part; remanded for further

proceedings.

                                                             I.

                                                 INTRODUCTION

         In May 2008, Todd Brown purchased a used vehicle, a 2004 Toyota 4Runner,

(4Runner) from K Motors, Inc. (Toyota of El Cajon).1 In March 2009, Brown filed this

action against Toyota of El Cajon alleging six causes of action: violation of the Car

1        K Motors, Inc. is apparently the legal name of the car dealership.
Buyer's Bill of Rights (Veh. Code, § 11713.18)2 (first cause of action); violation of the

Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et. seq.) (second cause of

action); negligence (third cause of action); breach of contract (fourth cause of action);

unjust enrichment (fifth cause of action); and violation of the Song-Beverly Consumer

Warranty Act (Song-Beverly) (Civ. Code, § 1790 et seq.) (sixth cause of action).3

        During a jury trial, after Brown had rested his case, subject to the admission of his

exhibits, Toyota of El Cajon filed a motion for nonsuit as to each of Brown's six causes

of action. The trial court granted the motion as to the first five causes of action in

Brown's complaint, but denied the motion as to Brown's Song-Beverly claim. The jury

subsequently returned a verdict in favor of Toyota of El Cajon on the remaining Song-

Beverly claim and the trial court entered a judgment in favor of Toyota of El Cajon.

After denying Brown's motion to tax costs, the court entered a cost award in favor of

Toyota of El Cajon as the prevailing party, pursuant to Code of Civil Procedure section

998.4




2     Unless otherwise specified, all subsequent statutory references are to the Vehicle
Code.

3     Brown also sued the manufacturer of the 4Runner, Toyota Motors Sales, U.S.A.
(Toyota Motors). Toyota Motors is not a party to this appeal.

4      The court entered the judgment on September 8, 2010. The court entered a second
judgment, awarding costs to Toyota of El Cajon on January 4, 2011. We construe the
January 4, 2011 judgment as an appealable postjudgment order awarding costs. Brown
timely appealed from the underlying September 8 judgment and timely filed an amended
appeal from the January 4 postjudgment order.
                                              2
       On appeal, Brown contends that the trial court erred in granting Toyota of El

Cajon's motion for nonsuit as to the first five causes of action in his complaint. Brown

also claims that there is not substantial evidence in the record to support the jury's verdict

on his Song-Beverly claim, and that the court erred in awarding costs to Toyota of El

Cajon as the prevailing party.

       We conclude that the trial court erred in granting Toyota of El Cajon's motion for

nonsuit as to Brown's claims for violation of the Car Buyer's Bill of Rights (first cause of

action) and the CLRA (second cause of action). We further conclude that Brown has not

demonstrated reversible error with respect to any of his other causes of action. In light of

our partial reversal of the judgment in favor of Toyota of El Cajon, we also reverse the

trial court's award of costs to Toyota of El Cajon as a prevailing party under Code of

Civil Procedure section 998.

       Accordingly, we reverse the judgment in part and reverse the order granting the

motion for nonsuit in part; we affirm the judgment in part and affirm the order granting

the motion for nonsuit in part; we reverse the order awarding costs, and remand the

matter for further proceedings.

                                              II.

                                 FACTUAL BACKGROUND

       In May 2008, Brown purchased a 4Runner from Toyota of El Cajon. At the time

of purchase, Toyota of El Cajon informed Brown that the 4Runner was a "certified" used

vehicle, and presented Brown with a report indicating that the vehicle had passed a 160-

point vehicle inspection. Among the items on the checklist was a statement indicating

                                              3
that the brake pads on the vehicle had at least 50 percent of their wear remaining. At the

time Brown purchased the 4Runner, he also purchased an extended warranty on the

vehicle.

       In the months after he purchased the 4Runner, Brown brought the vehicle back to

Toyota of El Cajon on several occasions, complaining that the brakes were not

functioning properly. In March 2009, Brown filed this action.

                                             III.

                                       DISCUSSION

A.     The trial court erred in granting Toyota of El Cajon's motion for nonsuit with
       respect to Brown's claims under the Car Buyer's Bill of Rights and the CLRA

       Brown claims that the trial court erred in granting Toyota of El Cajon's motion for

nonsuit as to his claims under the Car Buyer's Bill of Rights and the CLRA.

       1.      Governing law

               a.     The law applicable to nonsuits in general

       In O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 347, the Supreme Court outlined the

law that governs a trial court's consideration of a motion for nonsuit and the standard of

review to be applied in reviewing a judgment of nonsuit:

            "In reviewing a judgment of nonsuit, 'we must view the facts in the
            light most favorable to the plaintiff. "[C]ourts traditionally have
            taken a very restrictive view of the circumstances under which
            nonsuit is proper. The rule is that a trial court may not grant a
            defendant's motion for nonsuit if plaintiff's evidence would support a
            jury verdict in plaintiff's favor. [Citations.] [¶] In determining
            whether plaintiff's evidence is sufficient, the court may not weigh
            the evidence or consider the credibility of witnesses. Instead, the
            evidence most favorable to plaintiff must be accepted as true and
            conflicting evidence must be disregarded. The court must give 'to

                                              4
            the plaintiff['s] evidence all the value to which it is legally
            entitled, . . . indulging every legitimate inference which may be
            drawn from the evidence in plaintiff['s] favor. . . .' [Citation.] The
            same rule applies on appeal from the grant of a nonsuit. [Citation.]
            [Citation.]."

                b.       Relevant provisions of the Car Buyer's Bill of Rights and
                         the CLRA

       Section 11713.185 provides in relevant part:

            "(a) It is a violation of this code for the holder of any dealer's license
            issued under this article to advertise for sale or sell a used vehicle as
            'certified' or use any similar descriptive term in the advertisement or
            the sale of a used vehicle that implies the vehicle has been certified
            to meet the terms of a used vehicle certification program if any of
            the following apply:

            "[¶] . . . [¶]

            "(9) The term 'certified' or any similar descriptive term is used in any
            manner that is untrue or misleading or that would cause any
            advertisement to be in violation of subdivision (a) of Section 11713
            of this code or Section 17200 or 17500 of the Business and
            Professions Code.

            "(b) A violation of this section is actionable under the Consumers
            Legal Remedies Act (Title 1.5 (commencing with Section 1750) of
            Part 4 of Division 3 of the Civil Code . . . ."

       2.       Relevant evidence offered at trial

       As noted in part II., ante, Brown presented evidence that prior to his purchase of

the 4Runner, Toyota of El Cajon represented that the vehicle was a "certified" used

vehicle, and presented him with a checklist that stated that the vehicle had passed a 160-




5      Section 11713.18 was enacted in 2006 as a part of the "Car Buyer's Bill of
Rights." (Assem. Bill No. 68 (2005-2006 Reg. Sess.) § 1(a).)
                                                5
point inspection.6 Among other representations, the checklist indicated that the vehicle

had met the following standard: "Brake pads/shoes must have minimum of 50% wear

remaining." Brown also presented expert testimony that in order to meet this standard for

the 4Runner, the brake pads were required to measure five millimeters in width.

       Brown also offered in evidence a March 2008 inspection report (exhibit 12)

conducted by Toyota of El Cajon on the 4Runner when the vehicle had 59,546 miles.7

With respect to the brakes, the report contains a section that states in typed print, "Rear

____ mm." On the line between "Rear" and "mm," is a handwritten notation that appears

to be the numeral "2," but which could arguably be viewed as a "7."

6       There is a lack of clarity in the record as to whether the various documentary
exhibits referred to in this section were actually offered in evidence at trial. The
reporter's transcript indicates that only two exhibits were offered in evidence at trial.
However, the amended joint exhibit list indicates that all of the exhibits referred to in this
section were offered in evidence on the day before the jury returned its verdict, and there
was extensive testimony concerning the exhibits offered at trial. Further, the exhibits are
all contained in the record on appeal, both parties have referred to the exhibits in their
briefs on appeal, and neither party has suggested that any of the exhibits were excluded.
In addition, when Brown's counsel rested his case, he did so "[s]ubject to the entry of [his
exhibits]." Thus, although the reporter's transcript indicates that only two exhibits were
offered in evidence during the entire trial (neither of which are referred to in this
opinion), we assume for purposes of this decision that all of the exhibits referred to in this
section were in fact offered in evidence.
        In any event, whether the exhibits were admitted in evidence is immaterial
because we are reviewing the trial court's order partially granting Toyota of El Cajon's
motion for nonsuit. The trial court's order granting the partial nonsuit was entered prior
to the conclusion of the trial. Under these circumstances, we may affirm the judgment
only if it is clear that Brown would not have been able to offer evidence sufficient to
support a judgment in his favor. (See Willis v. Gordon (1978) 20 Cal.3d 629, 633.)
Thus, even assuming that the exhibits were not admitted, we assume that they would have
been admitted, in considering the trial court's granting of a nonsuit.

7    Brown testified that he was not shown this report prior to his purchase of the
4Runner.
                                              6
       Brown also presented an October 2007 inspection report (exhibit 10) conducted by

Longo Toyota8 on the 4Runner when the vehicle had 58,959 miles—approximately 600

fewer miles than when Brown purchased the vehicle. That report indicates that at the

time of that inspection, the rear brake pads measured three millimeters.

       Finally, Katson testified that he conducted an inspection of the 4Runner and that it

appeared to him that the rear brake pads had never been replaced.9

       3.     Toyota of El Cajon's motion for nonsuit

              a.     Toyota of El Cajon's motion for nonsuit and Brown's opposition

       After Brown had presented his case subject to the entry of his exhibits, Toyota of

El Cajon filed a motion for nonsuit as to each of Brown's six causes of action. With

respect to Brown's cause of action under the Car Buyer's Bill of Rights, Toyota of El

Cajon argued that Brown had failed to present any evidence that it had used the term

"certified" in a misleading manner or that the vehicle that it sold to Brown did not qualify

as a certified vehicle. Although not specifically discussed in its motion for nonsuit,

Toyota of El Cajon did not dispute in the trial court, as it concedes in its brief on appeal,

that "to qualify as a certified used vehicle under the Toyota Certified Program, the subject

vehicle needed to have a minimum of [five] millimeters of brake pad when the vehicle




8     Brown's expert, Paul Katson, testified that Longo Toyota had previously owned
the 4Runner and had "sen[t] it to the auction."

9      One can reasonably infer from Katson's testimony that Katson conducted this
inspection at some point after Brown purchased the 4Runner.
                                              7
was sold to Brown." Toyota of El Cajon argued that Brown had offered no evidence

demonstrating that the 4Runner's rear brake pads failed to meet this standard:

           "BROWN offered no evidence that the brake pad measurement on
           Exhibit 12 as to the rear brake was a '2' and not a '7' other than his
           opinion as what the number was, which he is obviously not qualified
           to opine about. The only other support other than his handwriting
           interpretation was that the [brake] measured a '3' back in October,
           2007, when Longo Toyota measured the brakes, but there were
           obviously significant changes to the vehicle between October 2007
           and March 2008 when [Toyota of El Cajon] acquired the vehicle. . . .
           Even by Mr. Katson's admission, brake pads do not 'grow' on their
           own, and he further admitted that [Toyota of El Cajon] did not put
           new brake pads on the rear. Therefore, it is impossible for the
           measurement (even as evaluated as of Brown's case in chief) to have
           been a '2,' since several subsequent readings showed them
           consistently at '5.' Brown offered no evidence at all that this vehicle
           was not properly certified . . . ."

       With respect to Brown's CLRA claim, Toyota of El Cajon argued that there was

no evidence that Toyota of El Cajon had misrepresented that "the vehicle was eligible to

be sold as certified," when in fact it was not eligible for such certification.

       In his opposition, Brown argued that he had presented evidence that Toyota of El

Cajon had violated section 11713.18, subdivision (a)(9) by stating that the 4Runner was

"certified" when the vehicle in fact failed to meet one of Toyota's guidelines for certified

vehicles. Specifically, Brown contended that he had presented evidence that the

4Runner's rear brake pads measured two millimeters in May 2008, when he purchased

the vehicle from Toyota of El Cajon, and that the vehicle thus failed to meet the

applicable Toyota certification guideline that brake pads have a thickness of at least five

millimeters.



                                               8
       Brown contended that exhibit 12, Toyota of El Cajon's March 2008 inspection

report, stated that the rear brake pads on the 4Runner had a thickness of two

millimeters.10 Brown argued that exhibit 12 thus constituted evidence that Toyota of El

Cajon had violated section 11713.18, subdivision (a)(9) by "sell[ing] the [v]ehicle as

certified when it did not meet the specified criteria that . . . brake pads must have at least

50 [percent] wear remaining."

       Brown also argued that the October 2007 inspection by Longo Toyota indicated

that the rear brake pads had a thickness of three millimeters at that time, and that there

was evidence that the 4Runner still had its original rear brake pads at the time of the May

2008 sale to Brown.11 Brown argued that this evidence supported the inference that the

rear brake pads were less than five millimeters at the time Toyota of El Cajon sold the

4Runner to Brown.

       Brown further claimed that Toyota of El Cajon's misrepresentation as to the

"certified" nature of the vehicle was actionable under the CLRA. (See § 11713.18, subd.

(b) [making a violation of section 11713.18 actionable pursuant to the CLRA].)

       b.     The trial court's ruling

       The trial court held a hearing on the motion for nonsuit. After hearing argument

from counsel, the court granted the motion as to all of Brown's causes of action, with the

10    It is undisputed that Toyota of El Cajon did not replace the rear brake pads at any
time.

11     Although not specifically mentioned in his opposition, as noted above, Brown's
expert testified that he had inspected the vehicle and that he believed that the rear brake
pads had never been replaced.
                                               9
exception of his claim pursuant to the Song-Beverly Consumer Warranty Act. With

respect to Brown's claims under the Car Buyer's Bill of Rights and the CLRA, the court

ruled:

            "[I]n viewing the documents in [the] light most favorable to the
            plaintiff, in this case, Mr. Brown, who is an extremely bright,
            cautious, and capable young man, I do not find that the plaintiff has
            presented sufficient evidence to meet . . . even the minimal standards
            of sending this to the jury on the first cause of action [under the Car
            Buyer's Bill of Rights]. [¶] The—and part of this not only has to do
            with the testimony of Mr. Brown, but it has to do with the testimony
            of his expert, who I found totally unbelievable. . . . [T]he expert was
            sloppy, unreliable, incredible, and unqualified.

            "[W]hen I look at the prove-up of the various facts, . . . I need to
            listen to what he says. And I view it within the context of how he
            believes that he is a professor. I have never heard anything like that
            in my entire life. So, to me, that . . . was a problem. [¶] I don't
            believe that it would be right or appropriate for the jury to deal with
            the first cause of action. So I am granting a nonsuit . . . on the first
            cause of action. [¶] As to the second cause of action, the [CLRA], I
            have viewed, in the light most favorable to plaintiff, the alleged
            deceptive practices or misrepresentations. I don't find that there is
            any basis to believe that there is any evidence of misrepresentations
            or deceptive practices . . . . And the [CLRA] is nonsuited."

         After the trial court indicated its willingness to reconsider other parts of its ruling,

the court heard further argument with respect to the evidence pertaining to the thickness

of the brake pads. Brown's counsel argued in part:

            "[U]p on that screen is a document that says a two. They told him
            that it was going to have at least five or more. Now, . . . you
            . . . [are] not supposed to judge the credibility of Mr. Katson
            [Brown's expert] on a motion for nonsuit, not supposed to judge the
            credibility of anybody."




                                                10
       The court responded:

            "I listened to the testimony, and I don't think there's any dispute,
            other than Mr. Katson's interpretation of whether it's a two or a
            seven. I don't—there's no dispute that it's a seven. If it's a seven,
            that ends the . . . [certified] checklist issue, in my mind. [¶ . . . And
            the only person that interpreted that as a two is a man that's
            unqualified to interpret it as a two. That's Mr. Katson. . . . [¶] So I
            mean . . . if your case, in terms of the first two causes of action, turns
            on whether it's a two or seven, it's no question in this court's mind
            that the evidence before this jury is uncontested that it's a seven.
            And I don't think it should reasonably go to the jury if it's a seven."

       After Brown's counsel argued that the court was erroneously deciding the factual

question of whether the handwritten number on exhibit 12 was a two "as a matter of law,"

the trial court responded:

            "I'm not saying it's a two as a matter of law. I'm saying that's all that
            we have before us and that the only person that's interpreting it as a
            two before this court is Mr. Katson, who I . . . found totally
            incredible. And the person who wrote it said it was a seven.[12]
            Once you get it to be a seven, which is above the 50 percent on the
            standard for certified vehicles, . . . well, as I've ruled."

       4.      Application

       Brown contends that the trial court erred in granting Toyota of El Cajon's motion

for nonsuit as to his claims pursuant to the Car Buyer's Bill of Rights and the CLRA on

the ground that he failed to present any evidence that the rear brake pads measured less

than five millimeters at the time Toyota of El Cajon sold him the vehicle. We agree.



12      A witness called by Toyota of El Cajon, Alfonso Eusebio, testified that he had
drafted the portion of the March 2008 Toyota of El Cajon inspection report concerning
the thickness of the rear brake pads on the 4Runner. Toyota of El Cajon's counsel asked
Eusebio, "This number where it says 'rear' on the brake pad thickness measurement is
what?" Eusebio responded, "Seven, sir."
                                               11
       To begin with, a reasonable jury could find that the March 2008 Toyota of El

Cajon inspection report states that the rear brake pads measured two millimeters in

thickness.13 Given that it is undisputed that Toyota of El Cajon never replaced the brake

pads, a reasonable jury could find, based on this report alone, that the rear brake pads

measured less than five millimeters at the time Toyota of El Cajon sold the vehicle to

Brown in May 2008. In addition, a reasonable jury could determine that this finding is

corroborated by the combined effect of evidence that the original brake pads were still on

the vehicle at the time of the May 2008 sale to Brown, and evidence that the October

2007 Longo Toyota inspection report stated that the brake pads were three millimeters in

thickness at that time.

       Viewing the evidence in the light most favorable to Brown as we must in

reviewing a trial court's granting of a nonsuit (see O'Neil v. Crane Co., supra, 53 Cal.4th

at p. 347), Brown clearly presented evidence that is legally sufficient to support a finding

that the rear brake pads measured less than five millimeters at the time Toyota of El

Cajon sold him the vehicle. This would not meet the applicable standard for certified

vehicles. In light of this evidence, a reasonable jury could have found that Toyota of El

Cajon violated the Car Buyer's Bill of Rights by using the term "certified" in a misleading



13        Our conclusion that a reasonable jury could make such a finding is supported by
the fact that Toyota of El Cajon's own expert initially interpreted the handwritten numeral
on the March 2008 inspection report to be a "2." At trial, Toyota of El Cajon's counsel
asked James Daher, "And when you were originally asked [at a deposition] about the
information regarding the brake pad thicknesses, . . . what did you say with respect
to . . . the rear brake pad thickness?" Daher responded, "At first glance, I thought that
was a two." (Italics added.)
                                             12
manner (§ 11713.18, subd. (a)(9)) and that the violation was actionable pursuant to the

CLRA (§ 11713.18, subd. (b)).

       The trial court's rationale for reaching a contrary conclusion is legally erroneous.

To begin with, the trial court erred in basing its nonsuit ruling in part on the court's

assessment that Brown's expert "was sloppy, unreliable, incredible, and unqualified."

(See O'Neil v. Crane Co., supra, 53 Cal.4th at p. 347 [" '[i]n determining whether

plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the

credibility of witnesses' [citation]"].) The court also erred in disregarding the March

2008 inspection report and the inferences that one could reasonably draw from the

October 2007 inspection report. (Ibid. [in ruling on nonsuit " 'the evidence most

favorable to plaintiff must be accepted as true' " and the court must " 'indulg[e] every

legitimate inference which may be drawn from the evidence in plaintiff['s] favor' . . .

[citation]"].) The court also erred in relying on the testimony of Eusebio, a defense

witness, that the handwritten notation, which appears to be a "2," was in fact a "7." (Ibid.

[" 'conflicting evidence must be disregarded' [citation]"].)

       In its brief on appeal, Toyota of El Cajon does not dispute that in order to qualify

as a certified vehicle under the Toyota Certified Program, a vehicle must have rear brake

pads that measure at least five millimeters in thickness at the time the vehicle is sold.

Toyota of El Cajon contends that Brown offered no evidence demonstrating that the rear

brake pads measured less than five millimeters at the time Toyota of El Cajon sold the

vehicle to Brown. We disagree, for the reasons stated above. In particular, we disagree

with Toyota of El Cajon's contention that "Brown offered no admissible evidence in

                                              13
opposition to Mr. Eusebio's testimony," to the effect that the handwritten numeral on the

March 2008 inspection report is a "7," when the numeral on the document appears to be a

"2." The March 2008 inspection report is itself evidence from which the jury could

conclude that the number was a "2"; the jury was not required to credit Eusebio's

testimony to the contrary.14 We also reject Toyota of El Cajon's suggestion that it was

"undisputed" that the rear brake pads were five millimeters in width on two occasions

after the May 2008 sale.15 While there was evidence that a Toyota of El Cajon

employee measured the rear brake pads at five millimeters on two occasions after the

sale, Brown hotly contested at trial whether these measurements were accurate. As noted

above, a trial court may not grant a nonsuit based on a fact as to which there is conflicting

evidence. (See O'Neil v. Crane Co., supra, 53 Cal.4th at p. 347.)

       Finally, we reject Toyota of El Cajon's contention that Brown suffered no

prejudice as a result of the trial court's granting of a nonsuit on his Car Buyer's Bill of



14      To the extent that Toyota of El Cajon intends to argue that Brown was required to
offer expert testimony to counter Eusebios's testimony, we reject the argument. Toyota
of El Cajon has not cited any authority, and we are not aware of any, that requires a party
to submit expert testimony to prove the content of a handwritten document. Determining
whether the numeral on the March 2008 report was a "2" or a "7" was a question the jury
would have been fully competent to answer without the need for expert testimony. (See,
e.g. Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762 [" ' "Where the jury is
just as competent as the expert to consider and weigh the evidence and draw the
necessary conclusions, then the need for expert testimony evaporates" ' [citation]"].)

15     In its brief, Toyota of El Cajon states, "There is no dispute [Toyota of El Cajon]
never put new brakes on the vehicle . . . , and that on two occasions after Brown
purchased the vehicle from [Toyota of El Cajon], he brought the vehicle in to [Toyota of
El Cajon] for servicing and on each occasion the rear brake pads measured 5
millimeters. . . . As Brown's own expert conceded, brake pads don't 'grow' on their own."
                                              14
Rights and CLRA claims, in view of the fact that the jury returned a verdict in Toyota of

El Cajon's favor on Brown's Song-Beverly claim. The jury's verdict on Brown's Song-

Beverly claim was based on the jury's finding that the 4Runner did not have a defect

covered by Brown's warranty that "substantially impaired," the vehicle's use, value, or

safety.16 Neither warranty coverage nor substantial impairment is an element of Brown's

causes of action under the Car Buyer's Bill of Rights or the CLRA. The jury's verdict in

favor of Toyota of El Cajon on the Song-Beverly claim thus does not demonstrate that

the jury would have reached a verdict in its favor on the Car Buyer's Bill of Rights and

CLRA claims.

       Accordingly, we conclude that the trial court committed reversible error in

granting Toyota of El Cajon's motion for nonsuit on Brown's Car Buyer's Bill of Rights

and CLRA claims.17




16     In its special verdict in favor of Toyota of El Cajon on Brown's Song-Beverly
claim, the jury found that Brown was given a written warranty, but answered "no" to the
following question, "Did the Toyota 4Runner have a defect covered by the warranty
which substantially impaired its use, value, or safety to a reasonable buyer in Mr.
Brown's situation?"

17      In light of our conclusion that the trial court erred in granting Toyota of El Cajon's
motion for nonsuit because Brown presented legally sufficient evidence to support his
Car Buyer's Bill of Rights and CLRA claims with respect to the rear brake pad theory of
liability described in the text, we need not consider Brown's contentions as to his
alternative theories of liability on these causes of action.
                                              15
B.     Brown has not established that the trial court committed reversible error with
       respect to any of his other claims

       Brown contends that the there is not substantial evidence to support the jury's

verdict in favor of Toyota of El Cajon on his claim under the Song-Beverly Consumer

Warranty Act. Brown also contends that the trial court erred in granting Toyota of El

Cajon's motion for nonsuit as to his claims for negligence, breach of contract and unjust

enrichment. We consider each contention in turn.

       1.     Brown's Song-Beverly Consumer Warranty Act claim

       In his opening brief, Brown argues, "The evidence (most favorable to plaintiff,

accepted as true and disregarding conflicting evidence) supported Brown's claim for

violation of the Song-Beverly Consumer Warranty Act." Brown maintains that his

testimony was "sufficient" to permit a jury's verdict in his favor on this claim. Although

it is not entirely clear from his opening brief, it appears that Brown is arguing that there is

not substantial evidence in the record to support the jury's verdict in favor Toyota of El

Cajon on his Song-Beverly Consumer Warranty Act claim.

       An appellant who raises a substantial evidence claim on appeal must cite all of the

evidence in the record in the light most favorable to the jury's verdict so as to permit a

reviewing court to determine whether there is sufficient evidence to support the verdict.

(E.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) If an appellant fails

to do so, the substantial evidence contention is forfeited. (Ibid.)

       As noted above, Brown argued in his opening brief that the evidence viewed in the

light most "favorable to plaintiff" was "sufficient" to support a verdict in his favor on his


                                              16
claim under the Song-Beverly Consumer Warranty Act. Brown failed to cite all, or even

any, of the evidence that supports the jury's verdict in favor of Toyota of El Cajon. Nor

did Brown attempt to show that there is not substantial evidence in the record to support

the jury's verdict. Accordingly, Brown has failed to adequately raise a substantial

evidence claim in his opening brief.18

       In his reply brief, Brown contends, "There was not substantial evidence to support

the jury's verdict with regard to the Song-Beverly Consumer Warranty Act." Brown has

failed to provide any reason for his failure to adequately raise his substantial evidence

claim in his opening brief. Accordingly, we conclude that Brown has forfeited his

contention that there is not substantial evidence to support the jury's verdict on his Song-

Beverly Consumer Warranty Act claim. (See Shade Foods, Inc. v. Innovative Products

Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [" ' "points raised in the

reply brief for the first time will not be considered, unless good reason is shown for

failure to present them before . . . " ' [citation]"].)19



18      It is clear from the record that Brown's failure to properly raise a substantial
evidence claim in his opening brief stems from the fact that Brown's appellate brief on his
Song-Beverly Consumer Warranty Act claim is nearly identical to his opposition to
Toyota of El Cajon's motion for nonsuit on this claim. However, as is discussed in the
text, since Brown's burden on appeal is to demonstrate the lack of substantial evidence to
support the jury's verdict, he may not carry that burden by citing to evidence sufficient to
support a verdict in his favor.

19      In any event, even in his reply brief, Brown fails to cite any of the evidence that
supports the jury's verdict in Toyota of El Cajon's favor on this claim. Further, in his
reply brief Brown merely argues that he presented sufficient evidence to support a verdict
in his favor without attempting to demonstrate, as is his burden, that the record lacks
substantial evidence to support the jury's verdict in Toyota of El Cajon's favor.
                                                17
       2.      Brown's negligence and breach of contract claims

       Brown contends that the trial court erred in granting Toyota of El Cajon's motion

for nonsuit as to his negligence and breach of contract claims. We conclude that Brown

has failed to carry his burden of demonstrating reversible error with respect to both

claims.

               a.      Governing law

       In Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach),

the court outlined the burden on an appellant to support its claims with reasoned

argument:

            "It is a fundamental rule of appellate review that the judgment
            appealed from is presumed correct and ' " 'all intendments and
            presumptions are indulged in favor of its correctness.' " [Citation.]'
            [Citation.] An appellant must provide an argument and legal
            authority to support his contentions. This burden requires more than
            a mere assertion that the judgment is wrong. 'Issues do not have a
            life of their own: If they are not raised or supported by argument or
            citation to authority, [they are] . . . waived.' [Citation.] It is not our
            place to construct theories or arguments to undermine the judgment
            and defeat the presumption of correctness. When an appellant fails
            to raise a point, or asserts it but fails to support it with reasoned
            argument and citations to authority, we treat the point as waived.
            [Citation.]"

       This same burden applies even to appellate claims that are subject to the de novo

standard of review. " ' "[D]e novo review does not obligate us to cull the record for the

benefit of the appellant . . . . As with an appeal from any judgment, it is the appellant's

responsibility to affirmatively demonstrate error . . . by citation to the record and any

supporting authority. In other words, review is limited to issues which have been



                                               18
adequately raised and briefed." ' [Citation.]" (Bains v. Moores (2009) 172 Cal.App.4th

445, 455.)

                b.     Application

       With respect to his negligence cause of action, Brown's complaint alleged the

following:

             "Defendants had duties to Plaintiff regarding the sale of the Vehicle
             to Plaintiff. [¶] . . . Defendants failed to meet their duties to
             Plaintiff regarding the sale of the Vehicle to Plaintiff."

       In his brief on appeal, Brown asserts that Toyota of El Cajon had duties to

"reasonably and properly inspect the 4Runner and not conceal from Brown the fact that

the 4Runner did not qualify as a Toyota certified used vehicle," and to "reasonably and

properly inspect the Vehicle and find the R-DOT sticker[20] and reveal it to Brown," and

to "reasonably attempt their repairs." However, Brown cites no legal authority in support

of any of these asserted duties. Further, Brown fails to provide any record citation

establishing that he asserted the existence of these duties at trial, and also fails to discuss

either the grounds on which Toyota of El Cajon moved for nonsuit on this cause of

action, or the basis on which the trial court granted the motion. Under these

circumstances, we conclude that Brown has failed to " ' "affirmatively demonstrate

error . . . by citation to the record and any supporting authority" ' [citation]" (Bains v.

Moores, supra, 172 Cal.App.4th at p. 455), with respect to the trial court's granting of

Toyota of El Cajon's motion for nonsuit on Brown's negligence cause of action.


20     Katson testified that an "R-Dot sticker" signifies that a part on the body of a
vehicle has been replaced with a part meeting a manufacturer's "factory standards."
                                              19
       With respect to his breach of contract claim, Brown's legal argument does not

contain a single citation to the record. For example, he fails to provide any citation to the

contractual provision that he contends Toyota of El Cajon breached, and fails to identify

any testimony supporting his claim of breach.21 Under these circumstances, it is clear

that Brown has failed to demonstrate any reversible error with respect to his breach of

contract claim. (See Benach, supra, 149 Cal.App.4th at p. 852.)

       Accordingly, we conclude that Brown has not demonstrated that the trial court

erred in granting Toyota of El Cajon's motion for nonsuit as to Brown's negligence and

breach of contract claims.

       3.     Brown's unjust enrichment claim

       Brown contends that the trial court erred in granting Toyota of El Cajon's motion

for nonsuit as to his unjust enrichment claim.

       "Although some California courts have suggested the existence of a separate cause

of action for unjust enrichment (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th

1583, 1593 [listing elements]), this court has . . . held that ' "[t]here is no cause of action

in California for unjust enrichment." [Citations.] Unjust enrichment is synonymous with

restitution. [Citation.]' (Durell [v. Sharp Healthcare (2010) 183 Cal.App.4th 1350,

1370].)" (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138.)




21     In his complaint, Brown alleged that Toyota of El Cajon breached a "vehicle
purchase contract." However, in his brief on appeal, Brown does not cite to any
provision of this contract, nor does Brown cite evidence demonstrating that Toyota of El
Cajon breached this contract.
                                               20
       Accordingly, we conclude that the trial court did not err in granting Toyota of El

Cajon's motion for nonsuit as to Brown's unjust enrichment claim.

C.     Because Toyota of El Cajon is no longer the prevailing party, we must reverse the
       trial court's costs award in its favor

       Brown contends that to the extent this court reverses the trial court's order granting

Toyota of El Cajon's motion for nonsuit with respect to Brown's causes of action pursuant

to the Car Buyer's Bill of Rights and the CLRA and the ensuing judgment, we must also

reverse the trial court's award of costs to Toyota of El Cajon as a prevailing party under

section 998. We agree. (See, e.g, Gilman v. Dalby (2009) 176 Cal.App.4th 606, 620 ["In

light of our conclusion that the judgment must be reversed as to the conversion cause of

action, it no longer can be said that defendants are the prevailing parties. Accordingly,

we must reverse the award of fees and costs . . . "]; Metropolitan Water Dist. v. Imperial

Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1436 ["Our reversal of the judgment in

favor of defendants requires we vacate the . . . cost award in their favor"].) Accordingly,

we reverse the trial court's costs award of costs to Toyota of El Cajon as a prevailing

party under section 998. Upon the conclusion of the proceedings on remand, the trial

court may reconsider the issue of prevailing party costs under section 998.

                                             IV.

                                      DISPOSITION

       The trial court's September 8, 2010 judgment is reversed with respect to Brown's

causes of action pursuant to the Car Buyer's Bill of Rights and the CLRA. The trial

court's judgment is affirmed in all other respects.


                                             21
       The trial court's August 23, 2010 order granting Toyota of El Cajon's motion for

nonsuit is reversed with respect to Brown's causes of action pursuant to the Car Buyer's

Bill of Rights and the CLRA. The court's order granting Toyota of El Cajon's motion for

nonsuit is affirmed in all other respects.

       The court's January 4, 2011 order awarding Toyota of El Cajon's costs is reversed.

Parties shall bear their own costs on appeal.



                                                                              AARON, J.

WE CONCUR:


              BENKE, Acting P. J.


                    McINTYRE, J.




                                             22
