California Civil Jury Instructions (CACI) (2017)

3200. Violation of Civil Code Section 1793.2(d) - Consumer Goods—Essential Factual Elements

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3200.Failure to Repurchase or Replace Consumer Good After
Reasonable Number of Repair Opportunities—Essential Factual
Elements (Civ. Code, § 1793.2(d))
[Name of plaintiff] claims that [he/she] was harmed by [name of
defendant]’s failure to repurchase or replace [a/an] [consumer good] after
a reasonable number of repair opportunities. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] bought [a/an] [consumer good]
[from/distributed by/manufactured by] [name of defendant];
2. That [name of defendant] gave [name of plaintiff] a warranty by
[insert at least one of the following:]
2. [making a written statement that [describe alleged express
warranty];] [or]
2. [showing [him/her] a sample or model of the [consumer good]
and representing, by words or conduct, that [his/her] [consumer
good] would match the quality of the sample or model;]
3. That the [consumer good] [insert at least one of the following:]
3. [did not perform as stated for the time specified;] [or]
3. [did not match the quality [of the [sample/model]] [or] [as set
forth in the written statement];]
4. [That [name of plaintiff] delivered the [consumer good] to [name of
defendant] or its authorized repair facilities for repair;]
4. [or]
4. [That [name of plaintiff] notified [name of defendant] in writing of
the need for repair because [he/she] reasonably could not deliver
the [consumer good] to [name of defendant] or its authorized
repair facilities because of the [size and weight/method of
attachment/method of installation] [or] [the nature of the defect]
of the [consumer good]]; [and]
5. That [name of defendant] or its representative failed to repair the
[consumer good] to match the [written statement/represented
quality] after a reasonable number of opportunities; [and]
6. [That [name of defendant] did not replace the [consumer good] or
reimburse [name of plaintiff] an amount of money equal to the
purchase price of the [consumer good], less the value of its use by
[name of plaintiff] before discovering the defect[s].]
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[A written statement need not include the words “warranty” or
“guarantee,” but if those words are used, a warranty is created. It is
also not necessary for [name of defendant] to have specifically intended
to create a warranty. A warranty is not created if [name of defendant]
simply stated the value of the [consumer good] or gave an opinion about
the [consumer good]. General statements concerning customer
satisfaction do not create a warranty.]
New September 2003; Revised April 2007, December 2007, December 2011
Directions for Use
An instruction on the definition of “consumer good” may be necessary if that issue
is disputed. Civil Code section 1791(a) provides: “ ‘Consumer goods’ means any
new product or part thereof that is used, bought, or leased for use primarily for
personal, family, or household purposes, except for clothing and consumables.
‘Consumer goods’ shall include new and used assistive devices sold at retail.”
Select the alternative in element 4 that is appropriate to the facts of the case.
Regarding element 4, if the plaintiff claims that the consumer goods could not be
delivered for repair, the judge should decide whether written notice of
nonconformity is required. The statute, Civil Code section 1793.2(c), is unclear on
this point.
Depending on the circumstances of the case, further instruction on element 6 may
be needed to clarify how the jury should calculate “the value of its use” during the
time before discovery of the defect.
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof is necessary, add the
following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] [did not match the quality
[of the [sample/model]]/as set forth in the written statement];
See also CACI No. 1243, Notification/Reasonable Time.
If appropriate to the facts, add: “It is not necessary for [name of plaintiff] to prove
the cause of a defect in the [consumer good].” The Song-Beverly Consumer
Warranty Act does not require a consumer to prove the cause of the defect or
failure, only that the consumer good “did not conform to the express warranty.”
(See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn.
8 [109 Cal.Rptr.2d 583].)
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases. (Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified for
use in cases involving an express warranty in a lease of consumer goods.
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See also CACI No. 3202, “Repair Opportunities” Explained.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
“Express Warranty” Defined. Civil Code section 1791.2.
• Express Warranty Made by Someone Other Than Manufacturer. Civil Code
section 1795.
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d).
• Extension of Warranty. Civil Code section 1793.1(a)(2).
• Buyer’s Delivery of Nonconforming Goods. Civil Code section 1793.2(c).
• Distributor or Seller of Used Consumer Goods. Civil Code section 1795.5.
• Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
• Extension of Warranty Period for Repairs. Civil Code section 1793.1(a)(2).
• Tolling of Warranty Period for Nonconforming Goods. Civil Code section
1795.6.
• “ ‘The Song-Beverly Act is a remedial statute designed to protect consumers
who have purchased products covered by an express warranty . . . . One of the
most significant protections afforded by the act is . . . 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
manufacturer shall either replace the goods or reimburse the buyer in an amount
equal to the purchase price paid by the buyer . . . .” . . .’ In providing these
remedies, the Legislature has not required that the consumer maintain
possession of the goods at all times. All that is necessary is that the consumer
afford the manufacturer a reasonable number of attempts to repair the goods to
conform to the applicable express warranties.” (Martinez v. Kia Motors
America, Inc. (2011) 193 Cal.App.4th 187, 191 [122 Cal.Rptr.3d 497], internal
citation omitted.)
• Broadly speaking, the Act regulates warranty terms; imposes service and repair
obligations on manufacturers, distributors and retailers who make express
warranties; requires disclosure of specified information in express warranties;
and broadens a buyer’s remedies to include costs, attorney fees and civil
penalties . . . [¶] [T]he purpose of the Act has been to provide broad relief to
purchasers of consumer goods with respect to warranties.” (National R.V., Inc.
v. Foreman (1995) 34 Cal.App.4th 1072, 1080 [40 Cal.Rptr.2d 672].)
• “[S]ection 1793.2, subdivision (d)(2), differs from section 1793.2, subdivision
(d)(1), in that it gives the new motor vehicle consumer the right to elect
restitution in lieu of replacement; provides specific procedures for the motor
vehicle manufacturer to follow in the case of replacement and in the case of
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restitution; and sets forth rules for offsetting the amount attributed to the
consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly
provide greater consumer protections to those who purchase new motor vehicles
than are afforded under the general provisions of the Act to those who purchase
other consumer goods under warranty.” (National R.V., Inc., supra, 34
Cal.App.4th at p.1079, internal citations and footnotes omitted.)
• The act does not require a consumer to give a manufacturer, in addition to its
local representative, at least one opportunity to fix a problem. Regarding
previous repair efforts entitling an automobile buyer to reimbursement, “[t]he
legislative history of [Civil Code section 1793.2] demonstrates beyond any
question that . . . a differentiation between manufacturer and local
representative is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214
Cal.App.3d 878, 888 [263 Cal.Rptr. 64].)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 52, 56, 314–324
1California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 3.4, 3.8, 3.15,
3.87
2 California UCC Sales and Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
2 California UCC Sales and Leases (Cont.Ed.Bar) Litigation Remedies, § 18.25
2 California UCC Sales and Leases (Cont.Ed.Bar) Leasing of Goods, § 19.38
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions
Involving Defects and Repairs, § 91.15 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.100 et seq. (Matthew
Bender)
5 California Civil Practice: Business Litigation. §§ 53:1, 53:3–53:4, 53:10–53:11,
53:14–53:17, 53:22–53:23, 53:26–53:27 (Thomson Reuters)
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