California Civil Jury Instructions (CACI)

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

[Name of plaintiff] claims that [he/she] was harmed by [name of defendant]'s breach of a warranty that [describe alleged express warranty]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] bought a[n] [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:]

[making a written statement that [describe alleged express warranty];] [or]

[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:]

[did not perform as stated for the time specified;] [or]

[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;]

[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 due to 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 tatement/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].]

[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.]

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, where 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—see Civil Code section 1793.2(c)—is unclear on this point.

Depending on the circumstances of the case, further instruction may be warranted regarding element 6 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 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 such 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.

Where the warranty period has been extended, it cannot expire any sooner than 60 days after the last repair of a claimed defect. (Civ. Code, § 1793.1(a)(2).)

Sources and Authority

"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].)

Civil Code section 1794(a) provides, in part: "Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this [Act] or under an . . . express warranty . . . may bring an action for the recovery of damages and other legal and equitable relief."

Civil Code section 1791.2 provides:

(a) "Express warranty" means:

(1) A written statement arising out of a sale to the consumer of a consumer good pursuant to which the anufacturer, 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; or

(2) In the event of any sample or model, that the whole of the goods conforms to such sample or model.

(b) It is not necessary to the creation of an express warranty that formal words such as "warrant" or "guarantee" be used, but if such words are used then an express warranty is created. An affirmation merely of the value of the goods or a statement purporting to be merely an opinion or commendation of the goods does not create a warranty.

(c) Statements or representations such as expressions of general policy concerning customer satisfaction which are not subject to any limitation do not create an express warranty.

Civil Code section 1795 provides, in part: "If express warranties are made by persons other than the manufacturer of the goods, the obligation of the person making such warranties shall be the same as that imposed on the manufacturer."

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

(1) Except as provided in paragraph (2), 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, less that amount directly attributable to use by the buyer prior to discovery of the nonconformity.

(2) 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 . . . or promptly make restitution to the buyer . . . . However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required to accept a replacement vehicle.

"[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 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.)

Civil Code section 1793.2(c) provides, in part: "The buyer shall deliver nonconforming goods to the manufacturer's service and repair facility within this state, unless, due to reasons of size and weight, or method of attachment, or method of installation, or nature of the nonconformity, delivery cannot reasonably be accomplished. If the buyer cannot return the nonconforming goods for any of these reasons, he or she shall notify the manufacturer or its nearest service and repair facility within the state. Written notice of nonconformity to the manufacturer or its service and repair facility shall constitute return of the goods for purposes of this section."

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].)

Civil Code section 1795.5 provides, in part: "Notwithstanding the provisions . . . defining consumer goods to mean 'new' goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers," with limited exceptions provided by statute.

Civil Code section 1790.3 provides: "The provisions of [the Song-Beverly Consumer Warranty Act] shall not affect the rights and obligations of parties determined by reference to the Commercial Code except that, where the provisions of the Commercial Code conflict with he rights guaranteed to buyers of consumer goods under the provisions of [the act], the provisions of [the act] shall prevail."

Civil Code section 1793.1(a)(2) provides, in part: "The warranty period will be extended for the number of whole days that the product has been out of the buyer's hands for warranty repairs. If a defect exists within the warranty period, the warranty will not expire until the defect has been fixed. The warranty period will also be extended if the warranty repairs have not been performed due to delays caused by circumstances beyond the control of the buyer, or if the warranty repairs did not remedy the defect and the buyer notifies the manufacturer or seller of the failure of the repairs within 60 days after they were completed."

Civil Code section 1795.6 provides, in part:

(a) Every warranty period relating to an . . . express warranty accompanying a sale or consignment for sale of consumer goods selling for fifty dollars ($50) or more shall automatically be tolled for the period from the date upon which the buyer either (1) delivers nonconforming goods to the manufacturer or seller for warranty repairs or service or (2), pursuant to [sections 1793.2(c) or 1793.22], notifies the manufacturer or seller of the nonconformity of the goods up to, and including, the date upon which (1) the repaired or serviced goods are delivered to the buyer, (2) the buyer is notified the goods are repaired or serviced and are available for the buyer's possession or (3) the buyer is notified that repairs or service is completed, if repairs or service is made at the buyer's residence.

(b) Notwithstanding the date or conditions set for the expiration of the warranty period, such warranty period shall not be deemed expired if . . . : (1) after the buyer has satisfied the requirements of subdivision (a), the warranty repairs or service has not been performed due to delays caused by circumstances beyond the control of the buyer or (2) the warranty repairs or service performed upon the nonconforming goods did not remedy the nonconformity for which such repairs or service was performed and the buyer notified the manufacturer or seller of this failure within 60 days after the repairs or service was completed. When the warranty repairs or ervice has been performed so as to remedy the nonconformity, the warranty period shall expire in accordance with its terms, including any extension to the warranty period for warranty repairs or service.

Secondary Sources

3 Witkin, Summary of California Law (9th ed. 1987) Sales, §§ 51, 55, 306-308

1 California UCC Sales & Leases (Cont.Ed.Bar 2002) Warranties, §§ 3.4, 3.8, 3.15, 3.87

2 California UCC Sales & Leases (Cont.Ed.Bar 2002) Prelitigation Remedies, § 17.70; id., Litigation Remedies, § 18.25; id., Leasing of Goods, § 19.38

California Products Liability Actions, Ch. 2, Liability for Defective Products, §§ 2.30[3], 2.31, Ch. 8, Defenses, § 8.07[3][b] (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, §§ 502.42, 502.53 (Matthew Bender)

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

5 Bancroft-Whitney's California Civil Practice: Business Litigation (1993) Consumer Warranties, §§ 53:1, 53:3-53:4, 53:10-53:11, 53:14-53:17, 53:22-53:23, 53:26-53:27, pp. 6, 8-10, 14-15, 18-23, 27-29, 31-34; id. (2001 supp.) at §§ 53:3-53:4, 53:10, 53:14, 53:16, 53:26-53:27, pp. 29-33, 36-37

(New September 2003)