California Civil Jury Instructions (CACI)
3240. Reimbursement Damages - Consumer Goods
If you decide that [name of defendant] or its representative failed to repair or service the [consumer good] to match the [written warranty/represented quality] after a reasonable number of opportunities, then [name of plaintiff] is entitled to be reimbursed for the purchase price of the [consumer good], less the value of its use by [name of plaintiff] before discovering the defect.
[Name of plaintiff] must prove the amount of the purchase price, and [name of defendant] must prove the value of the use of the [consumer good].
Directions for Use
This instruction is intended for use with claims involving consumer goods under the Song-Beverly Consumer Warranty Act. For claims involving new motor vehicles, see CACI No. 3241, Restitution From Manufacturer—New Motor Vehicle.
This instruction can be modified if it is being used for claims other than those described in the instruction.
Sources and Authority
Civil Code section 1793.2(d)(1) provides, in part: "[I]f 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, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity."
Civil Code section 1794(b) provides:
The measure of the buyer's damages in an action under this section shall include the rights of replacement or reimbursement as set forth in subdivision (d) of Section 1793.2, and the following:
(1) Where the buyer has rightfully rejected or justifiably revoked acceptance of the goods or has exercised any ight to cancel the sale, Sections 2711, 2712, and 2713 of the Commercial Code shall apply.
(2) Where the buyer has accepted the goods, Sections 2714 and 2715 of the Commercial Code shall apply, and the measure of damages shall include the cost of repairs necessary to make the goods conform.
"The clear mandate of section 1794 . . . is that the compensatory damages recoverable for breach of the [Song-Beverly Consumer Warranty] Act are those available to a buyer for a seller's breach of a sales contract." (Kwan v. Mercedes-Benz of North. America, Inc. (1994) 23 Cal.App.4th 174, 188 [28 Cal.Rptr.2d 371].)
Civil Code section 1791.1(d) provides: "Any buyer of consumer goods injured by a breach of the implied warranty of merchantability and where applicable by a breach of the implied warranty of fitness has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply."
"[I]n the usual situation, emotional distress damages are not recoverable under the Song-Beverly Consumer Warranty Act." (Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 625, fn. 15 [39 Cal.Rptr.2d 159]); see also Kwan, supra, 23 Cal.App.4th at pp. 187-192.)
3 Witkin, Summary of California Law (9th ed. 1987) Sales, § 308
1 California UCC Sales & Leases (Cont.Ed.Bar 2002) Warranties, § 3.90
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)
5 Bancroft-Whitney's California Civil Practice: Business Litigation (1993) Consumer Warranties, § 53:31, pp. 38-39; id. (2001 supp.) at § 53:31, pp. 41-43
(New September 2003)