California Civil Jury Instructions (CACI) (2017)

3202. "Repair Opportunities" Explained

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3202.“Repair Opportunities” Explained
Each time the [consumer good/new motor vehicle] was given to [name of
defendant] [or its authorized repair facility] 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] [or its authorized repair facility] must have been given at
least two opportunities to fix the [consumer good/new motor vehicle]
[unless only one repair attempt was possible because the [consumer
good/new motor vehicle] was later destroyed or because [name of
defendant] [or its authorized repair facility] refused to attempt the
repair].
New September 2003; Revised February 2005, December 2005, June 2006
Directions for Use
This instruction applies only to claims under Civil Code section 1793.2(d) and not
to other claims, such as claims for breach of the implied warranty of
merchantability. (See Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402,
406–407 [7 Cal.Rptr.3d 546].)
The final bracketed portion of the last sentence of this instruction is intended for
use only 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
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d).
• “[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
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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].)
Secondary Sources
2 California UCC Sales & Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
8California 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, § 206.104 et seq. (Matthew
Bender)
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3202
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