CACI No. 3201. Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable Number of Repair Opportunities - Essential Factual Elements (Civ. Code, § 1793.2(d))

Judicial Council of California Civil Jury Instructions (2023 edition)

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3201.Failure to Promptly Repurchase or Replace New Motor
Vehicle After Reasonable Number of Repair
Opportunities - Essential Factual Elements (Civ. Code, § 1793.2(d))
[Name of plaintiff] claims that [name of defendant] failed to promptly
repurchase or replace [a/an] [new motor vehicle] 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/leased] [a/an] [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] that [was/were] covered by the
warranty and 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
4. [or]
4. [That [name of plaintiff] notified [name of defendant] in writing of
the need for repair of the defect[s] because [he/she/nonbinary
pronoun] 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 vehicle or gave an opinion about the
vehicle. General statements concerning customer satisfaction do not
create a warranty.]
New September 2003; Revised February 2005, December 2005, April 2007,
December 2007, December 2011
Directions for Use
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 [new motor vehicle] had a defect covered by
the warranty;
See also CACI No. 1243, Notification/Reasonable Time.
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.
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.
See also CACI No. 3202, “Repair Opportunities” Explained, CACI No. 3203,
Reasonable Number of Repair Opportunities - Rebuttable Presumption, and CACI
No. 3204, “Substantially Impaired” Explained.
Sources and Authority
Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
Extension of Warranty Period. Civil Code section 1793.1(a)(2).
Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
“Express Warranty” Defined. Civil Code section 1791.2.
Express Warranty Made by Someone Other Than Manufacturer. Civil Code
section 1795.
“New Motor Vehicle” Defined. Civil Code section 1793.22(e)(2).
Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d)(2).
Buyers Delivery of Nonconforming Goods. Civil Code section 1793.2(c).
Extension of Warranty. Civil Code section 1793.1(a)(2).
Tolling of Warranty Period for Nonconforming Goods. Civil Code section
‘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 buyers 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].)
“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).” (Donlen v. Ford Motor Co.
(2013) 217 Cal.App.4th 138, 152 [158 Cal.Rptr.3d 180].)
“Although the Act treats motor vehicles differently from other types of consumer
goods in several ways, we find no indication that the Legislature intended to
treat motor vehicles differently with respect to the limitation on the Act’s
coverage to goods sold in California.” (Cummins, Inc. v. Superior Court (2005)
36 Cal.4th 478, 491 [30 Cal.Rptr.3d 823, 115 P.3d 98].)
“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; see also Robertson v. Fleetwood
Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 801, fn. 11 [50
Cal.Rptr.3d 731] [nonconformity can include entire complex of related
“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.)
“[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
consumers 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.)
“[W]e conclude the phrase ‘other motor vehicles sold with a manufacturers new
car warranty’ refers to cars sold with a full warranty, not to previously sold cars
accompanied by some balance of the original warranty. We therefore conclude
the trial judge was correct to conclude plaintiffs’ truck does not meet the
definition of ‘new motor vehicle.’ (Rodriguez v. FCA US, LLC (2022) 77
Cal.App.5th 209, 225 [292 Cal.Rptr.3d 382], review granted July 13, 2022,
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, original italics, 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 . . . . In reality, . . . , the
manufacturer seldom on its own initiative offers the consumer the options
available under the Act: a replacement vehicle or restitution. Therefore, as a
practical matter, the consumer will likely request replacement or restitution. But
the consumers request is not mandated by any provision in the Act. Rather, the
consumers request for replacement or restitution is often prompted by the
manufacturers unforthright approach and stonewalling of fundamental warranty
problems.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041,
1050 [104 Cal.Rptr.3d 853], original italics.)
“[Defendant] argues allowing evidence of postwarranty repairs extends the term
of its warranty to whatever limit an expert is willing to testify. We disagree.
Evidence that a problem was fixed for a period of time but reappears at a later
date is relevant to determining whether a fundamental problem in the vehicle
was ever resolved. Indeed, that a defect first appears after a warranty has expired
does not necessarily mean the defect did not exist when the product was
purchased. Postwarranty repair evidence may be admitted on a case-by-case
basis where it is relevant to showing the vehicle was not repaired to conform to
the warranty during the warranty’s existence.” (Donlen, supra, 217 Cal.App.4th
at p. 149, internal citations omitted.)
“[W]e hold that registration renewal and nonoperation fees are not recoverable
as collateral charges under section 1793.2, subdivision (d)(2)(B), part of the Act
because they are not collateral to the price paid for the vehicle, but they are
recoverable as incidental damages under section 1794, part of the Act if they
were incurred and paid as a result of a manufacturers failure to promptly
provide a replacement vehicle or restitution under section 1793.2, subdivision
(d)(2).” (Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 987 [266
Cal.Rptr.3d 346, 470 P.3d 56].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 52, 57, 325
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 7.4, 7.8, 7.15,
7.87; id., Prelitigation Remedies, § 13.68; id., Litigation Remedies, § 14.25, id.,
Division 10: Leasing of Goods, § 17.31
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, §§ 91.15, 91.18 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.104 (Matthew Bender)
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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