California Civil Jury Instructions (CACI)

3242. Incidental Damages

[Name of plaintiff] also claims additional reasonable expenses for [list claimed incidental damages].

To recover these expenses, [name of plaintiff] must prove all of the following:

1. That the expense was actually charged;

2. That the expense was reasonable; and

3. That [name of defendant]'s [breach of warranty/[other violation of Song-Beverly Consumer Warranty Act]] was a substantial factor in causing the expense.

Sources and Authority

Civil Code section 1794(b) provides, in part:

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 right 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.

Civil Code section 1793.2(d)(2)(B) provides, in part: "In the case of restitution, the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer . . . plus any incidental damages to which the buyer is entitled under Section 1794, including, but not limited to, reasonable repair, towing, and rental car costs actually incurred by the buyer."

Commercial Code section 2712(2) provides, in part: "The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2715), but less expenses saved in consequence of the seller's breach."

Commercial Code section 2715 provides, in part:

(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.

(2) Consequential damages resulting from the seller's breach include

(a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

(b) Injury to person or property proximately resulting from any breach of warranty.

"In light of the relevant legislative history and express language in the Act, we conclude California Uniform Commercial Code section 2715's reference to losses must be construed and applied in the context of monetary losses actually incurred." (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 756 [52 Cal.Rptr.2d 134], emphasis in original.)

Secondary Sources

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.160 (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)