3241. Restitution From Manufacturer - New Motor Vehicle

If you decide that [name of defendant] or its authorized repair facility failed to repair the defect(s) after a reasonable number of opportunities, then [name of plaintiff] is entitled to recover the amounts [he/she] proves [he/she] paid for the car, including:

1. The amount paid to date for the vehicle, including finance charges [and any amount still owed by [name of plaintiff]];

2. Charges for transportation and manufacturer-installed options; and

3. Sales tax, license fees, registration fees, and other official fees.

In determining the purchase price, do not include any charges for items supplied by someone other than [name of defendant].

[[Name of plaintiff]'s recovery must be reduced by the value of the use of the vehicle before it was [brought in/submitted] for repair. [Name of defendant] must prove how many miles the vehicle was driven between the time when [name of plaintiff] took possession of the vehicle and the time when [name of plaintiff] first delivered it to [name of defendant] or its authorized repair facility to fix the defect. [Insert one of the following:]

[Using this mileage number, I will reduce [name of plaintiff]'s recovery based on a formula.]

[Multiply this mileage number by the purchase price, including any charges for transportation and manufacturer-installed options, and divide that amount by 120,000. Deduct the resulting amount from [name of plaintiff]'s recovery.]]

Directions for Use

This instruction is intended for use with claims involving new motor vehicles under the Song-Beverly Consumer Warranty Act. For claims involving other consumer goods, see CACI No. 3240, Reimbursement Damages—Consumer Goods. For claims involving incidental damages, see CACI No. 3242, Incidental Damages.

This instruction can be modified if it is being used for claims other than those described in the instructions. In lieu of restitution, plaintiff may request replacement with "a new motor vehicle substantially identical to the vehicle replaced," pursuant to Civil Code section 1793.2(d)(2)(A). If plaintiff so requests, elements 1-3 should be replaced with appropriate language.

Modify element 1 depending on whether plaintiff still has an outstanding obligation on the financing of the vehicle.

The last two bracketed options are intended to be read in the alternative. Use the last bracketed option if the court desires for the jury to make the calculation of the deduction. The "formula" referenced in the last bracketed paragraph can be found at Civil Code section 1793.2(d)(2)(C).

Sources and Authority

Civil Code section 1794(b) provides:

The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2, and the following:

(1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any right to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply.

(2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.

Civil Code section 1793.2(d)(2) provides, in part:

If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle . . . to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.

(A) In the case of replacement, the manufacturer shall replace the buyer's vehicle with a new motor vehicle substantially identical to the vehicle replaced. The replacement vehicle shall be accompanied by all express and implied warranties that normally accompany new motor vehicles of that specific kind. The manufacturer also shall pay for, or to, the buyer the amount of any sales or use tax, license fees, registration fees, and other official fees which the buyer is obligated to pay in connection with the replacement, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(B) In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales tax, license fees, registration fees, and other official fees, plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

(C) When the manufacturer replaces the new motor vehicle pursuant to subparagraph (A), the buyer shall only be liable to pay the manufacturer an amount directly attributable to use by the buyer of the replaced vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. When restitution is made pursuant to subparagraph (B), the amount to be paid by the manufacturer to the buyer may be reduced by the manufacturer by that amount directly attributable to use by the buyer prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. The amount irectly attributable to use by the buyer shall be determined by multiplying the actual price of the new motor vehicle paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, by a fraction having as its denominator 120,000 and having as its numerator the number of miles traveled by the new motor vehicle prior to the time the buyer first delivered the vehicle to the manufacturer or distributor, or its authorized service and repair facility for correction of the problem that gave rise to the nonconformity. Nothing in this paragraph shall in any way limit the rights or remedies available to the buyer under any other law.

"[A]s the conjunctive language in Civil Code section 1794 indicates, the statute itself provides an additional measure of damages beyond replacement or reimbursement and permits, at the option of the buyer, the Commercial Code measure of damages which includes 'the cost of repairs necessary to make the goods conform.' " (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 302 [45 Cal.Rptr.2d 10], internal citation omitted.)

"[I]n the usual situation, emotional distress damages are not recoverable under the Song-Beverly Consumer Warranty Act." (Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 625, fn. 15 [39 Cal.Rptr.2d 159], emphasis in original; see also Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-192 [28 Cal.Rptr.2d 371].)

"[F]inding an implied prohibition on recovery of finance charges would be contrary to both the Song-Beverly Consumer Warranty Act's remedial purpose and section 1793.2(d)(2)(B)'s description of the refund remedy as restitution. A more reasonable construction is that the Legislature intended to allow a buyer to recover the entire amount actually expended for a new motor vehicle, including paid finance charges, less any of the expenses expressly excluded by the statute." (Mitchell v. Blue Bird Body Co. (2000) 80 Cal.App.4th 32, 37 [95 Cal.Rptr.2d 81].)

Secondary Sources

3 Witkin, Summary of California Law (9th ed. 1987) Sales, § 308

1 California UCC Sales & Leases (Cont.Ed.Bar 2002) Warranties, § 3.90

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.43 (Matthew Bender)

20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)

5 Bancroft-Whitney's California Civil Practice: Business Litigation (1993) Consumer Warranties, § 53:31, pp. 38-39; id. (2001 supp.) at § 53:31, pp. 41-43

(Revised June 2005)