                           NOT FOR PUBLICATION                             FILED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.




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