California Civil Jury Instructions (CACI)

3201. Violation of Civil Code Section 1793.2(d) - New Motor Vehicle—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] breached a warranty. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [bought/leased] a[n] [new motor vehicle] [from/ distributed by/manufactured by] [name of defendant];

2. That [name of defendant] gave [name of plaintiff] a written warranty that [describe alleged express warranty];

3. That the vehicle had [a] defect[s] covered by the warranty that substantially impaired its use, value, or safety to a reasonable person in [name of plaintiff]'s situation;

4. [That [name of plaintiff] delivered the vehicle to [name of defendant] or its authorized repair facility for repair of the defect[s];]

[That [name of plaintiff] notified [name of defendant] in writing of the need for repair of the defect[s] because [he/ she] reasonably could not deliver the vehicle to [name of defendant] or its authorized repair facility because of the nature of the defect[s];]

5. That [name of defendant] or its authorized repair facility failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so; and

6. That [name of defendant] did not promptly replace or buy back the vehicle.

[It is not necessary for [name of plaintiff] to prove the cause of a defect in the [new motor vehicle].]

[A written warranty 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 ehicle or gave an opinion about the vehicle. General statements concerning customer satisfaction do not create a warranty.]

Directions for Use

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 that 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 [new motor vehicle] had a defect covered by the warranty;

See also CACI No. 1243, Notification/Reasonable Time.

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.

Include the bracketed sentence preceding the final bracketed paragraph if appropriate to the facts. 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 a motor vehicle.

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, ttorney 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].)

"A plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element)." (Oregel, supra, 90 Cal.App.4th at p. 1101.)

The Song-Beverly Act does not apply unless the vehicle was purchased in California. (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478 [30 Cal.Rptr.3d 823, 115 P.3d 98].)

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 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 the rights guaranteed to buyers of consumer goods under the provisions of [the act], the provisions of [the act] shall prevail."

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 manufacturer, 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 sed, 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 1793.22(e)(2) provides, in part: " 'New motor vehicle' means a new motor vehicle that is bought or used primarily for personal, family, or household purposes. 'New motor vehicle' also means a new motor vehicle . . . that is bought or used primarily for business purposes by a person . . . or any . . . legal entity, to which not more than five motor vehicles are registered in this state. 'New motor vehicle' includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion . . ., a dealer-owned vehicle and a 'demonstrator' or other motor vehicle sold with a manufacturer's new car warranty."

"Under well-recognized rules of statutory construction, the more specific definition [of "new motor vehicle"] found in the current section 1793.22 governs the more general definition [of "consumer goods"] found in section 1791." (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 126 [41 Cal.Rptr.2d 295].)

" 'Nonconformity' is defined as 'a nonconformity which substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee.' The term is similar to what the average person would understand to be a 'defect.' " (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249 [40 Cal.Rptr.2d 576], internal citation omitted.)

"The issue of whether the problems constituted substantial impairment is one for the trier of fact." (Schreidel, supra, 34 Cal.App.4th at p. 1250.)

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 otor 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].)

"[T]he only affirmative step the Act imposes on consumers is to 'permit[] the manufacturer a reasonable opportunity to repair the vehicle.' " (Oregel, supra, 90 Cal.App.4th at p. 1103, internal citation omitted.)

"[T]he Act does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties—other than, of course, permitting the manufacturer a reasonable opportunity to repair the vehicle. . . . [A]s a practical matter, the consumer will likely request replacement or restitution. But the consumer's request is not mandated by any provision in the Act. Rather, the consumer's request for replacement or restitution is often prompted by the manufacturer's unforthright approach and stonewalling of fundamental warranty problems." (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 302-303 [45 Cal.Rptr.2d 10], emphasis in original.)

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 as 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 service 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, pp. 47-48, 50-51, 240-243; id. (2002 supp.) at §§ 51, 55, 306- 308, pp. 14-15, 94-103

1 Sales & Leases (Cont.Ed.Bar 2001) Warranties, §§ 7.4, 7.8, 7.15, 7.87, pp. 233-234, 239, 245-246, 293-294; id., Prelitigation Remedies, at § 13.68, pp. 619-620; id., Litigation Remedies, at § 14.25, pp. 658-659; id., Division 10: Leasing of Goods, at § 17.31, p. 807

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.31 (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.43[5][b] (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

(Revised December 2005)