California Civil Jury Instructions (CACI)
3202. "Repair Opportunities" Explained
Each time the [consumer good/new motor vehicle] was given to [name of defendant] [or its representative] for repair counts as an opportunity to repair, even if [it/they] did not do any repair work.
In determining whether [name of defendant] had a reasonable number of opportunities to fix the [consumer good/new motor vehicle], you should consider all the circumstances surrounding each repair visit. [Name of defendant] must have been given at least two opportunities to fix the [[consumer good]/substantially impairing defect].
Directions for Use
Use the "substantially impairing defect" option in the last sentence only in cases involving new motor vehicles.
The last sentence of this instruction may be omitted in cases where the evidence shows that only one repair attempt was possible because of the subsequent malfunction and destruction of the vehicle or where the defendant refused to attempt the repair. (See Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750 [52 Cal.Rptr.2d 134]; Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921 [215 Cal.Rptr. 507].)
Sources and Authority
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. . . .
(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 ither promptly replace the new motor vehicle . . . or promptly make restitution to the buyer.
"[T]he only affirmative step the Act imposes on consumers is to 'permit the manufacturer a reasonable opportunity to repair the vehicle.' Whether or not the manufacturer's agents choose to take advantage of the opportunity, or are unable despite that opportunity to isolate and make an effort to repair the problem, are matters for which the consumer is not responsible." (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103-1104 [109 Cal.Rptr.2d 583], internal citation omitted.)
"Section 1793.2(d) requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle 'after a reasonable number of attempts.' 'Attempts' is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle." (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 [135 Cal.Rptr.2d 846].)
2 California UCC Sales & Leases (Cont.Ed.Bar 2002) Prelitigation Remedies, § 17.70
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.43 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
(Revised December 2005)