Filed 12/30/14 Grayton v. CarMax Auto Superstores 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MAURICE GRAYTON,                                                    D064967

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00029236-
                                                                    CU-PL-CTL)
CARMAX AUTO SUPERSTORES
CALIFORNIA LLC et al.,

         Defendants and Respondents.


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

Trapp, Judge. Affirmed.



         Maurice Grayton, in pro. per., for Plaintiff and Appellant.

         Schlichter & Shonack, Kurt A. Schlichter, Steven C. Shonack, Kim T. Mann; Doll

Amir & Eley, Hunter R. Eley and Chelsea L. Diaz, for Defendants and Respondents.
                                    INTRODUCTION

       Maurice Grayton sued CarMax Auto Superstores California, LLC (CarMax) and

Capital One N.A. (Capital One) contending the car he purchased was defective. He

appeals a judgment of dismissal following the trial court's order sustaining a demurrer to

his second amended complaint (SAC) in its entirety without leave to amend. Although

difficult to decipher, Grayton appears to contend on appeal (1) his complaint adequately

pleaded a cause of action for violation of the Song-Beverly Consumer Warranty Act

(Song-Beverly Act) (Civ. Code, § 1790 et seq.) and (2) the court abused its discretion in

denying his request for leave to amend. Finding no merit in either contention, we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                            A

                                   Factual Allegations

       We derive the facts from the complaints. (Howard Jarvis Taxpayers Assn. v. City

of La Habra (2001) 25 Cal.4th 809, 814.)

       Grayton purchased a 2002 Chevrolet Corvette in September 2012 from CarMax

after looking for a Corvette for several months. Since CarMax advertised vehicles as

"carefully inspected and reconditioned" Grayton felt "assured that any vehicle undergoing

such a rigorous inspection would not have mechanical problems."

       Three days after purchasing the vehicle, the steering wheel locked up while

Grayton was driving. Grayton alleges he placed the vehicle in reverse with both the

clutch and the gas pedal engaged when the "steering wheel locked up at a speed of ten to

fifteen miles per hour." Grayton slammed on the brakes because he could not guide the

                                             2
vehicle away from bystanders or objects behind the vehicle. Grayton alleged this

experience caused him undue anxiety and emotional distress.

       CarMax towed the vehicle to the dealership and determined there was "an open

recall on the steering wheel column." CarMax then had the Corvette repaired.

       The SAC added an allegation stating the anti-lock braking system (ABS) light

came on after the electronic steering column mechanism was replaced. According to the

SAC, the Chevrolet dealer required a deposit to inspect the braking system and CarMax

"provided that it would send out its inspector but has failed to do so." Grayton now

refuses to operate the vehicle.

                                              B

                                       The Pleadings

       The original complaint named CarMax and Capital One and alleged causes of

action for negligence, breach of express and implied warranty, strict products liability,

false representation, and personal assault.

       After CarMax filed a demurrer, Grayton obtained leave to file a first amended

complaint (FAC). The FAC alleged only three causes of action for (1) violation of the

Song-Beverly Act based on allegations of breach of both express and implied warranties,

(2) violation of the Consumer Legal Remedies Act (CLRA), and (3) violation of the

unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.). Although the FAC

named Capital One as a defendant, it did not include Capital One in the allegations.

       The court sustained the demurrer of CarMax and Capital One to the first cause of

action for violations of the Song-Beverly Act based on an express warranty "because

                                              3
plaintiff pled the alleged steering defect was repaired and has not pled any further defect

in the vehicle or any failure to replace or reimburse." It overruled the demurrer to the

cause of action based on implied warranty of merchantability. The court sustained the

demurrer as to second and third causes of action for violations of the CLRA and UCL.

The court determined Grayton had not alleged facts showing how either the CLRA or

UCL were violated or standing under the UCL. The court granted Grayton leave to

amend.

       The SAC, which reads like an opposition to a demurrer rather than a complaint,

again alleged causes of action for (1) violation of the Song-Beverly Act (now based only

on express warranty), (2) violation of the CLRA, and (3) violation of the UCL. The SAC

alleged CarMax advertised it "carefully inspected and reconditions the vehicle," provided

an express "30-day CarMax warranty," and represented the vehicle was "safe to drive and

had no defects."

       The SAC alleged Capital One is vicariously liable for the torts of CarMax in the

sales transaction. The SAC also alleged Capital One provided a lower credit score for

him than a prior lender had given him. Capital One allegedly represented it would

refinance the vehicle loan after the purchase, but has failed to do so. Grayton alleged this

constitutes an unfair business practice and he was harmed because he was required to pay

a higher interest rate and his credit score has been negatively impacted.




                                             4
                                              C

                                     Demurrer to SAC

       CarMax and Capital One filed a demurrer to the SAC contending Grayton did not

state a cause of action for breach of express warranty under the Song-Beverly Act

because the steering column was repaired in a single attempt and he does not allege he

presented the vehicle for repair of the ABS system to CarMax on at least two occasions.

CarMax and Capital One also contended Grayton did not state a cause of action under the

CLRA or the UCL based on vehicle financing or based on allegedly failing to complete

repairs of "open recalls" on used vehicles. Additionally, they contended Grayton did not

allege he suffered "actual damage" as required to have standing for CLRA and UCL

claims.

       Grayton did not oppose the demurrer, but requested leave to amend at oral

argument. Grayton also argued the Commercial Code provides express and implied

warranties are "cumulative." Counsel for CarMax and Capital One argued the SAC did

not contain allegations for beach of implied warranty.

       The trial court confirmed its tentative ruling sustaining the demurrer in its entirety

without leave to amend. The court ruled the first cause of action for breach of express

warranty failed to state sufficient facts to support a violation of the Song-Beverly Act

against CarMax based on illumination of the ABS light because the SAC does not allege

Grayton brought the vehicle back to CarMax for repair. As to Capital One, the court

determined there were no allegations showing the Song-Beverly Act covers vehicle

financing or that Capital One made any misleading statements about the car loan. The

                                              5
court also ruled the second and third causes of action failed to state sufficient facts for

specific violations of the CLRA or the UCL. The court denied Grayton's request for

leave to amend noting this was the second demurrer and Grayton did not inform the court

how the complaint could be amended to state a viable cause of action.

                                       DISCUSSION

                                               I

                                     Standard of Review

       On appeal from a judgment after a demurrer is sustained without leave to amend,

we review the order de novo and exercise our independent judgment on whether the

complaint states a cause of action as a matter of law. (Lincoln Property Co., N.C., Inc. v.

Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911.) We assume the truth of all

properly pleaded material facts, as well as facts inferred from the pleadings. (Howard

Jarvis Taxpayers Assn. v. City of La Habra, supra, 25 Cal.4th at p. 814.) However, we

do not assume the truth of contentions, deductions or conclusions of fact or law (Evans v.

City of Berkeley (2006) 38 Cal.4th 1, 6).

       Even though Grayton is representing himself, the rules of civil procedure apply

equally to him. A litigant "appearing in propria persona, . . . is entitled to the same, but

no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125

Cal.App.3d 623, 638; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) For

any appellant, "[a]ppellate briefs must provide argument and legal authority for the

positions taken. '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.' "

                                               6
(Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not

bound to develop appellants' arguments for them. [Citation.] The absence of cogent

legal argument or citation to authority allows this court to treat the contentions as

waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

       Grayton's opening brief is difficult to decipher. It contains no citations to the

record by settled statement on appeal, but cites occasionally to certain documents

contained therein or to the register of actions. Grayton cites legal authority, but typically

without analysis or explanation as to how the authority applies to the facts of his case.

We address only the points we can glean from the opening brief and treat all other issues

not supported by the record or cogent analysis as waived.

                                              II

                        Forfeiture of Claims Not Raised on Appeal

       Grayton does not challenge the court's order sustaining the demurrer to the second

and third causes of action for alleged violations of the CLRA and UCL. Therefore, we

deem those claims abandoned. (Wall Street Network, Ltd. v. New York Times Co. (2008)

164 Cal.App.4th 1171, 1177 ["Generally, appellants forfeit or abandon contentions of

error regarding the dismissal of a cause of action by failing to raise or address the

contentions in their briefs on appeal"].)




                                              7
                                             III

    The SAC Does Not State a Cause of Action for Violation of the Song-Beverly Act

                                             A

       Grayton appears to contend the trial court erred in sustaining the demurrer to the

SAC in its entirety without leave to amend because it previously ruled Grayton's FAC

sufficiently alleged facts to support a claim for breach of the implied warranty of

merchantability. Grayton is mistaken.

       Although Grayton's SAC mentioned the prior ruling on the implied warranty claim

in a procedural summary, the SAC does not include allegations of a breach of implied

warranty in the cause of action for violation of the Song-Beverly Act. The SAC does not

allege the vehicle was unfit or unusable for its ordinary purpose. At most, it alleges the

vehicle is not what he bargained for and he refuses to operate it. This is not sufficient to

state a claim for breach of implied warranty of merchantability. (American Suzuki Motor

Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295 [implied warranty of

merchantability does not " 'impose a general requirement that goods precisely fulfill the

expectation of the buyer. Instead it provides for a minimum level of quality' "].)

       The fact a prior complaint may have sufficiently stated a claim for breach of

implied warranty does not assist Grayton. " ' "It is well established that an amendatory

pleading supersedes the original one, which ceases to perform any function as a

pleading." ' [Citations.] Thus, an amended complaint supersedes all prior complaints.

[Citations.] The amended complaint furnishes the sole basis for the cause of action, and

the original complaint ceases to have any effect either as a pleading or as a basis for

                                              8
judgment." (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th

1124, 1130-1131; see Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 901 [amended

complaint "put an end to the provisions of the previous complaint"].) Grayton's choice to

file the SAC without allegations to support a claim for breach of the implied warranty of

merchantability put an end to that claim. This issue was raised in the demurrer to the

SAC. Grayton did not oppose the demurrer or otherwise seek relief to re-allege this

cause of action.1

                                              B

       The trial court did not err in sustaining the demurrer based on failure to state a

claim for breach of express warranty. "The Song-Beverly Act is a remedial statute

designed to protect consumers who have purchased products covered by an express

warranty." (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144

Cal.App.4th 785, 798.) An express warranty is defined as "[a] written statement arising

out of a sale to the consumer of a consumer good pursuant to which the manufacturer,

distributor, or retailer undertakes to preserve or maintain the utility or performance of the

consumer good or provide compensation if there is a failure in utility or performance."

(Civ. Code, § 1791.2, subd. (a)(1).)

       "One of the most significant protections afforded by the [Song-Beverly Act] is

found at [Civil Code] section 1793.2, subdivision (d), which provides with respect to


1       For the same reason, we disregard Grayton's contention the trial court erred in
failing to address causes of action included in Grayton's original complaint for
negligence, strict product liability, false representation or personal assault. These claims
were abandoned when Grayton filed his subsequent complaints.
                                              9
consumer goods that 'if the manufacturer or its representative in this state does not

service or repair the goods to conform to the applicable express warranties after a

reasonable number of attempts, the [warrantor] shall either replace the goods or

reimburse the buyer in an amount equal to the purchase price paid by the buyer . . . .'

[Citation.] A buyer of consumer goods who is damaged by the [warrantor's] failure to

comply with the act may bring an action to recover damages and other legal and equitable

relief." (Robertson v. Fleetwood Travel Trailers of California, Inc., supra, 144

Cal.App.4th at p. 798.)

       A plaintiff pursuing an action under the Song-Beverly Act must plead and prove:

"(1) the vehicle had a nonconformity covered by the express warranty that substantially

impaired the use, value or safety of the vehicle (the nonconformity element); (2) the

vehicle was presented to an authorized representative of the [warrantor] for repair (the

presentation element); and (3) the [warrantor] or [its] representative did not repair the

nonconformity after a reasonable number of repair attempts (the failure to repair

element)." (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)

The failure to repair element requires the plaintiff to give the warrantor, at a minimum,

more than one opportunity to fix or repair the nonconformity. (Silvio v. Ford Motor Co.

(2003) 109 Cal.App.4th 1205, 1207-1209.)

       In this case, the pleadings establish CarMax repaired the steering column lock

problem in one attempt. Therefore, Grayton cannot state a claim for breach of express

warranty based on the steering problem.



                                             10
       The SAC alleged for the first time the ABS light came on after the steering

problem was repaired. Grayton allegedly took the car to a local Chevrolet dealer for

repair, which apparently sought a deposit. However, the SAC did not allege Grayton

provided CarMax with a reasonable number of opportunities to repair the vehicle during

the warranty period. The SAC alleged CarMax would send an inspector "but has failed

to do so." However, there is no allegation Grayton made more than one attempt to have

CarMax repair or inspect the braking system or ABS light. Therefore, Grayton cannot

state a claim for breach of express warranty under the Song-Beverly Act as to CarMax.

       As to Capital One, the SAC did not allege sufficient facts to establish Capital One,

as a lender, can be liable for breach of express warranty under the Song-Beverly Act.

The SAC alleged CarMax used Capital One for Grayton to obtain a loan for the vehicle.

It alleged Capital One was "vicariously liable for torts of CarMax committed within the

scope of the transaction." The SAC did not establish Capital One was a manufacturer,

distributor or retailer of a consumer good within the meaning of the Song-Beverly Act or

that it made any express warranty about the fitness of the vehicle. The allegations

regarding Grayton's credit score and an alleged promise to refinance the vehicle do not

fall within the scope of the Song-Beverly Act. (Civ. Code, §§ 1791, subds. (a), (e), (j),

(l), 1791.2, subd. (a)(1).)

                                            IV

                    No Abuse of Discretion in Denying Leave to Amend

       Grayton contends the trial court abused its discretion in denying him leave to

amend. The trial court observed Grayton had several opportunities to plead his claims,

                                            11
but had not adequately done so. Additionally, Grayton had not informed the trial court

how he could amend the complaint to state a viable cause of action.

       "If we see a reasonable possibility that the plaintiff could cure the defect by

amendment, then we conclude that the trial court abused its discretion in denying leave to

amend. If we determine otherwise, then we conclude it did not." (Campbell v. Regents

of University of California (2005) 35 Cal.4th 311, 320.) " 'The burden of proving such

reasonable possibility is squarely on the plaintiff.' " (Maxton v. Western States Metals

(2012) 203 Cal.App.4th 81, 95.)

       On appeal, a plaintiff must show in what manner the complaint can be amended

and how the amendment will change the legal effect of the pleading. However, " '[t]he

assertion of an abstract right to amend does not satisfy this burden.' [Citation.] The

plaintiff must clearly and specifically state 'the legal basis for amendment, i.e., the

elements of the cause of action,' as well as the 'factual allegations that sufficiently state

all required elements of that cause of action.' " (Maxton, supra, 203 Cal.App.4th at

p. 95.) Grayton does not meet his burden.

       Grayton baldly contends if he is allowed another attempt to amend his complaint

he would "change the legal effect of his pleading pursuant [to] [California Uniform

Commercial Code section] 2317." Commercial Code section 2317 states, "[w]arranties

whether express or implied shall be construed as consistent with each other and as

cumulative, but if such construction is unreasonable the intention of the parties shall

determine which warranty is dominant." The statute then outlines factors to ascertain the

parties' intention. (Cal. U. Com. Code, § 2317.) Grayton does not explain how this

                                              12
section applies or what additional facts he could allege to cure the defects in the SAC.

Therefore, we find no basis for leave to amend and no abuse of discretion.

                                      DISPOSITION

       The judgment of dismissal is affirmed. Respondents shall recover their costs on

appeal.


                                                                      MCCONNELL, P. J.

WE CONCUR:


HALLER, J.


MCINTYRE, J.




                                            13
