California Civil Jury Instructions (CACI) (2017)

1230. Express Warranty—Essential Factual Elements

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1230.Express Warranty—Essential Factual Elements
[Name of plaintiff] claims that [he/she/it] was harmed by the [product]
because [name of defendant] represented, either by words or actions, that
the [product] [insert description of alleged express warranty, e.g., “was
safe”], but the [product] was not as represented. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one or more of the following:]
1. [gave [name of plaintiff] a written warranty that the [product]
[insert description of written warranty];] [or]
1. [made a [statement of fact/promise] [to/received by] [name of
plaintiff] that the [product] [insert description of alleged express
warranty];] [or]
1. [gave [name of plaintiff] a description of the [product];] [or]
1. [gave [name of plaintiff] a sample or model of the [product];]
2. That the [product] [insert one or more of the following:]
2. [did not perform as [stated/promised];] [or]
2. [did not meet the quality of the [description/sample/model];]
[3. That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] was not as
represented, whether or not [name of defendant] received such
notice;]
4. That [name of defendant] failed to [repair/specify other remedy
provided by warranty] the [product] as required by the warranty;
5. That [name of plaintiff] was harmed; and
6. That the failure of the [product] to be as represented was a
substantial factor in causing [name of plaintiff]’s harm.
[Formal words such as “warranty” or “guarantee” are not required to
create a warranty. It is also not necessary for [name of defendant] to
have specifically intended to create a warranty. But a warranty is not
created if [name of defendant] simply stated the value of the goods or
only gave [his/her] opinion of or recommendation regarding the goods.]
New September 2003; Revised February 2005, June 2015
Directions for Use
This instruction is for use if breach of an express warranty is alleged under the
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California Commercial Code. (See Orichian v. BMW of North America, LLC (2014)
226 Cal.App.4th 1322, 1333–1334 [172 Cal.Rptr.3d 876]; Comm. Code, § 2313.) If
a breach of written warranty under the federal Magnuson-Moss Warranty Act (see
15 U.S.C. § 2301 et seq.) is alleged, give the first option for element 1. (See 15
U.S.C. §§ 2310(d)(1), 2301(6).)
The giving of notice to the seller is not required in personal injury or property
damage lawsuits against a manufacturer or another supplier with whom the plaintiff
has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d
57, 61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI
No. 1243, Notification/Reasonable Time.
Sources and Authority
• Express Warranties. California Uniform Commercial Code section 2313.
Applicable to “Transactions in Goods.” California Uniform Commercial Code
section 2102.
• “Goods” Defined. California Uniform Commercial Code section 2105.
• Damages Under Commercial Code. California Uniform Commercial Code
section 2714.
• “An express warranty ‘is a contractual promise from the seller that the goods
conform to the promise. If they do not, the buyer is entitled to recover the
difference between the value of the goods accepted by the buyer and the value
of the goods had they been as warranted.’ ” (Dagher v. Ford Motor Co. (2015)
238 Cal.App.4th 905, 928 [190 Cal.Rptr.3d 261].)
• “A warranty relates to the title, character, quality, identity, or condition of the
goods. The purpose of the law of warranty is to determine what it is that the
seller has in essence agreed to sell.” (Keith v. Buchanan (1985) 173 Cal.App.3d
13, 20 [220 Cal.Rptr. 392], internal citation omitted.)
• “The essential elements of a cause of action under the California Uniform
Commercial Code for breach of an express warranty to repair defects are (1) an
express warranty to repair defects given in connection with the sale of goods;
(2) the existence of a defect covered by the warranty; (3) the buyer’s notice to
the seller of such a defect within a reasonable time after its discovery; (4) the
seller’s failure to repair the defect in compliance with the warranty; and (5)
resulting damages.” (Orichian, supra, 226 Cal.App.4th at pp. 1333–1334,
internal citations omitted.)
• “Privity is not required for an action based upon an express warranty.” (Hauter
v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “Used car owners that obtain their vehicles via private sales and who comply
with the warranty terms may seek to enforce the express warranty against the
manufacturer by bringing an action under the Commercial Code based on
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breach of express warranty. Such an action does not require that the plaintiff
purchase the vehicle from a retail seller.” (Dagher, supra, 238 Cal.App.4th at p.
928.)
• “ ‘The determination as to whether a particular statement is an expression of
opinion or an affirmation of a fact is often difficult, and frequently is dependent
upon the facts and circumstances existing at the time the statement is made.’ ”
(Keith, supra, 173 Cal.App.3d at p. 21, internal citation omitted.)
• “Statements made by a seller during the course of negotiation over a contract
are presumptively affirmations of fact unless it can be demonstrated that the
buyer could only have reasonably considered the statement as a statement of the
seller’s opinion. Commentators have noted several factors which tend to
indicate an opinion statement. These are (1) a lack of specificity in the
statement made, (2) a statement that is made in an equivocal manner, or (3) a
statement which reveals that the goods are experimental in nature.” (Keith,
supra, 173 Cal.App.3d at p. 21.)
• “It is important to note . . . that even statements of opinion can become
warranties under the code if they become part of the basis of the bargain.”
(Hauter, supra, 14 Cal.3d at p. 115, fn. 10.)
• “The basis of the bargain requirement represents a significant change in the law
of warranties. Whereas plaintiffs in the past have had to prove their reliance
upon specific promises made by the seller, the Uniform Commercial Code
requires no such proof.” (Hauter, supra, 14 Cal.3d at p. 115, internal citations
omitted.)
• “It is immaterial whether defendant had actual knowledge of the
contraindications. ‘The obligation of a warranty is absolute, and is imposed as a
matter of law irrespective of whether the seller knew or should have known of
the falsity of his representations.’ ” (Grinnell v. Charles Pfizer & Co. (1969)
274 Cal.App.2d 424, 442 [79 Cal.Rptr. 369], internal citations omitted.)
• “[A] sale is ordinarily an essential element of any warranty, express or implied
. . . .” (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [137
Cal.Rptr. 417], internal citations omitted.)
• “Neither Magnuson-Moss nor the California Uniform Commercial Code
requires proof that a defect substantially impairs the use, value, or safety of a
vehicle in order to establish a breach of an express or written warranty, as
required under Song-Beverly.” (Orichian, supra, 226 Cal.App.4th at p. 1331; fn.
9, see CACI No. 3204, “Substantially Impaired” Explained.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 56–66
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.23, 502.42–502.50, 502.140–502.150 (Matthew Bender)
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20 California Points and Authorities, Ch. 206, Sales, § 206.60 et seq. (Matthew
Bender)
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