California Civil Jury Instructions (CACI) (2017)

3230. Breach of Disclosure Obligations - Essential Factual Elements

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3230.Continued Reasonable Use Permitted
The fact that [name of plaintiff] continued to use the [consumer good/new
motor vehicle] after delivering it for repair does not waive [his/her] right
to demand replacement or reimbursement. Nor does it reduce the
amount of damages that you should award to [name of plaintiff] if you
find that [he/she] has proved [his/her] claim against [name of defendant].
New June 2012
Directions for Use
Give this instruction to make it clear to the jury that the fact that the buyer
continued to use the product after delivering it for repair does not waive his or her
right to reimbursement and damages. (See Jiagbogu v. Mercedes-Benz USA (2004)
118 Cal.App.4th 1235, 1240–1244 [13 Cal.Rptr.3d 679].) Continued use is relevant,
however, to the jury’s consideration of whether the vehicle was substantially
impaired. See CACI No. 3204, “Substantially Impaired” Explained, factor (d).
There may be some uncertainty about the defendant’s right to a damages offset for
continued use. In an older case, the court held that principles of rescission under
the Uniform Commercial Code survive under the Song-Beverly Consumer Warranty
Act, and that the seller remains protected through a recoupment right of setoff for
the buyer’s use of the good beyond the time of revoking acceptance. (Ibrahim v.
Ford Motor Co. (1989) 214 Cal.App.3d 878, 898 [263 Cal.Rptr. 64].) However, a
more recent case rejected the proposition that pre Song-Beverly Commercial Code
rules on continued use survive under Song-Beverly. (See Jiagbogu, supra, 118
Cal.App.4th at p. 1240.) The last sentence of this instruction is based on Jiagbogu,
but in light of the potential uncertainty on the damages offset issue, the trial court
will need to decide whether Jiagbogu or Ibrahim states the applicable rule.
Sources and Authority
• “[Defendant] contends that [plaintiff]’s request for restitution amounted to a
rescission. But [Civil Code] section 1793.2 does not refer to rescission or any
portion of the Commercial Code that discusses rescission. The [Song-Beverly]
Act does not parallel the Commercial Code; it provides different and more
extensive consumer protections. [Plaintiff] did not invoke rescission, or any of
the common law doctrines or Commercial Code provisions relating to that
remedy. It would not matter if he had referred to rescission in his buyback
request, as long as he sought a remedy only under the Act, which contains no
provision requiring formal rescission to obtain relief. [Defendant] acknowledges
in its brief that [plaintiff] requested refund or replacement. That comports with
a claim under the Act, not with a traditional cause of action for rescission.”
(Jiagbogu, supra, 118 Cal.App.4th at p. 1240, original italics, internal citations
omitted.)
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• “Within the context of the California Uniform Commercial Code courts around
the country are in general agreement that reasonable continued use of motorized
vehicles does not, as a matter of law, prevent the buyer from asserting
rescission (or its U.Com.Code equivalent, revocation of acceptance). This
consensus is based upon the judicial recognition of practical
realities—purchasers of unsatisfactory vehicles may be compelled to continue
using them due to the financial burden to securing alternative means of
transport for a substantial period of time. The seller remains protected through a
recoupment right of setoff for the buyer’s use of the good beyond the time of
revoking acceptance.” (Ibrahim, supra, 214 Cal.App.3d at pp. 897–898, internal
citations omitted.)
• “Nothing in the language of either the Uniform Commercial Code or the Song-
Beverly Act suggests that abrogation of the common law principles relating to
continued use and waiver of a buyer’s right to rescind was intended. The former
expressly specifies that ‘the principles of law and equity . . . shall supplement
its provisions.’ (Cal. U. Com. Code, § 1103.) The legal principles governing
continued use quoted previously are thus still applicable, as are the rules
regulating the equitable right of setoff.” (Ibrahim, supra, 214 Cal.App.3d at p.
898, internal citations omitted.)
• “Since we reject [defendant]’s basic argument that a request for replacement or
refund under the Act constitutes rescission, we find no error in the trial court’s
refusal to instruct on waiver of right to rescind or on statutory offsets for
postrescission use.” (Jiagbogu, supra, 118 Cal.App.4th at p. 1242.)
• “[Civil Code] Section 1793.2, subdivision (d)(2)(C), and (d)(2)(A) and (B) to
which it refers, comprehensively addresses replacement and restitution; specified
predelivery offset; sales and use taxes; license, registration, or other fees; repair,
towing, and rental costs; and other incidental damages. None contains any
language authorizing an offset in any situation other than the one specified. This
omission of other offsets from a set of provisions that thoroughly cover other
relevant costs indicates legislative intent to exclude [post-delivery use] offsets.”
(Jiagbogu, supra, 118 Cal.App.4th at pp. 1243–1244.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 198, 318
8California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions
Involving Defects and Repairs, § 91.18 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales, § 502.42 (Matthew
Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.102 et seq. (Matthew
Bender)
30 California Legal Forms: Transaction Guide, Ch. 92, Service Contracts, § 92.53
(Matthew Bender)
CACI No. 3230 SONG-BEVERLY CONSUMER WARRANTY ACT
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