CACI No. 3241. Restitution From Manufacturer - New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2), 1794(b))

Judicial Council of California Civil Jury Instructions (2024 edition)

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3241.Restitution From Manufacturer - New Motor Vehicle (Civ.
Code, §§ 1793.2(d)(2), 1794(b))
If you decide that [name of defendant] or its authorized repair facility
failed to repair the defect(s) after a reasonable number of opportunities,
then [name of plaintiff] is entitled to recover the amounts
[he/she/nonbinary pronoun] proves [he/she/nonbinary pronoun] paid for the
car, including:
1. The amount paid to date for the vehicle, including finance
charges [and any amount still owed by [name of plaintiff]];
2. Charges for transportation and manufacturer-installed options;
3. Sales tax, use tax, license fees, registration fees, and other official
In determining the purchase price, do not include any charges for items
supplied by someone other than [name of defendant].
[[Name of plaintiff]’s recovery must be reduced by the value of the use of
the vehicle before it was [brought in/submitted] for repair. [Name of
defendant] must prove how many miles the vehicle was driven between
the time when [name of plaintiff] took possession of the vehicle and the
time when [name of plaintiff] first delivered it to [name of defendant] or its
authorized repair facility to fix the defect. [Insert one of the following:]
[Using this mileage number, I will reduce [name of plaintiff]’s
recovery based on a formula.]
[Multiply this mileage number by the purchase price, including any
charges for transportation and manufacturer-installed options, and
divide that amount by 120,000. Deduct the resulting amount from
[name of plaintiff]’s recovery.]]
New September 2003; Revised February 2005, June 2005, December 2011, June
Directions for Use
This instruction is intended for use with claims involving new motor vehicles under
the Song-Beverly Consumer Warranty Act. The remedy is replacement of the vehicle
or restitution. (Civ. Code, § 1793.2(d)(2).) For claims involving other consumer
goods, see CACI No. 3240, Reimbursement Damages - Consumer Goods.
Incidental damages are recoverable as part of restitution. (Civ. Code,
§ 1793.2(d)(2)(B).) For an instruction on incidental damages, see CACI No. 3242,
Incidental Damages. See also CACI No. 3243, Consequential Damages.
The remedies for new motor vehicles provided by Civil Code section 1793.2(d)(2)
apply to all claims under the Song-Beverly Consumer Warranty Act. (Civ. Code,
§ 1794(b).) These remedies are also available for implied-warranty claims. (See Civ.
Code, § 1791.1(d).) The first paragraph of this instruction can be modified if it is
being used for claims other than those brought under Civil Code section
Modify element 1 depending on whether plaintiff still has an outstanding obligation
on the financing of the vehicle.
The last two bracketed options are intended to be read in the alternative. Use the
last bracketed option if the court desires for the jury to make the calculation of the
deduction. The “formula” referenced in the last bracketed paragraph can be found at
Civil Code section 1793.2(d)(2)(C).
Additional remedies under the California Uniform Commercial Code are provided
for “goods.” (See Civ. Code, § 1794(b).) Although consumer goods and new motor
vehicles are treated differently under Civil Code section 1793.2, “consumer goods”
are defined broadly under Song-Beverly (see Civ. Code, § 1791(a) [“consumer
goods” means any new product or part thereof that is used, bought, or leased for use
primarily for personal, family, or household purposes, except for clothing and
consumables]). At least one court has applied the California Uniform Commercial
Code remedies for new motor vehicles. (See Krotin v. Porsche Cars North America,
Inc. (1995) 38 Cal.App.4th 294, 302 [45 Cal.Rptr.2d 10].)
Sources and Authority
Measure of Buyers Damages. Civil Code section 1794(b).
Replacement or Reimbursement After Reasonable Number of Repair Attempts:
New Motor Vehicle. Civil Code section 1793.2(d)(2).
“[A]s the conjunctive language in Civil Code section 1794 indicates, the statute
itself provides an additional measure of damages beyond replacement or
reimbursement and permits, at the option of the buyer, the Commercial Code
measure of damages which includes ‘the cost of repairs necessary to make the
goods conform.’ (Krotin, supra, 38 Cal.App.4th at p. 302, internal citation
“[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], emphasis in
original; see also Kwan v. Mercedes-Benz of N. Am. (1994) 23 Cal.App.4th 174,
187-192 [28 Cal.Rptr.2d 371].)
“[F]inding an implied prohibition on recovery of finance charges would be
contrary to both the Song-Beverly Consumer Warranty Act’s remedial purpose
and section 1793.2(d)(2)(B)’s description of the refund remedy as restitution. A
more reasonable construction is that the Legislature intended to allow a buyer to
recover the entire amount actually expended for a new motor vehicle, including
paid finance charges, less any of the expenses expressly excluded by the statute.”
(Mitchell v. Blue Bird Body Co. (2000) 80 Cal.App.4th 32, 37 [95 Cal.Rptr.2d
“[Defendant] argues that [plaintiff] would receive a windfall if he is not required
to pay for using the car after his buyback request. But to give [defendant] an
offset for that use would reward it for its delay in replacing the car or refunding
[plaintiff]’s money when it had complete control over the length of that delay,
and an affirmative statutory duty to replace or refund promptly.” (Jiagbogu v.
Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1244 [13 Cal.Rptr.3d 679].)
“[T]he imposition of a requirement that [plaintiff] mitigate his damages so as to
avoid rental car expenses - after [defendant] had a duty to respond promptly to
[plaintiff]’s demand for restitution - would reward [defendant] for its delay in
refunding [plaintiff]’s money.” (Lukather v. General Motors, LLC (2010) 181
Cal.App.4th 1041, 1053 [104 Cal.Rptr.3d 853].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 331, 334
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.18 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.127, 206.128 (Matthew
California Civil Practice: Business Litigation § 53:26 (Thomson Reuters)

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