California Civil Jury Instructions (CACI) (2017)

3242. Incidental Damages

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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.
New September 2003; Revised December 2011
Directions for Use
This instruction is for use if incidental damages are sought in an action under the
Song-Beverly Consumer Warranty Act. Incidental damages are allowed as part of
the restitution remedy for new motor vehicles. (Civ. Code, § 1793.2(d)(2)(B).) See
also CACI No. 3241, Restitution From Manufacturer—New Motor Vehicle.
With regard to claims for consumer goods, the availability of incidental damages
may be limited. If the plaintiff has elected to accept the goods, incidental damages
under California Uniform Commercial Code section 2715 and the cost of repairs
required to make the goods conform to the warranty are allowed. (Civ. Code,
§ 1794(b)(2).) If the buyer has rightfully rejected or justifiably revoked acceptance,
incidental damages are allowed under California Uniform Commercial Code
sections 2711, 2712, and 2713 for the seller’s nondelivery or repudiation of the
contract or in connection with cover (obtaining replacement goods from another
seller). (Civ. Code, § 1794(b)(1).) If any of these matters are disputed, additional
instructions will be required on these points.
If incidental damages are otherwise recoverable, they are recoverable regardless of
the nature of the claim under Song-Beverly. (See Civ. Code, § 1794(b) [statute
covers all Song-Beverly actions].)
Sources and Authority
• Measure of Buyer’s Damages: Commercial Code Remedies Available. Civil
Code section 1794(b).
• Restitution Includes Incidental Damages. Civil Code section 1793.2(d)(2)(B).
• Buyer’s Remedies for Seller’s Breach. California Uniform Commercial Code
section 2711(1).
• Incidental Damages Recoverable. California Uniform Commercial Code sections
2712(2), 2713(1).
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• “Incidental Damages” Defined. California Uniform Commercial Code section
2715(1).
• “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], original italics.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 318
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§ 502.160 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.43 (Matthew Bender)
5 California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
CACI No. 3242 SONG-BEVERLY CONSUMER WARRANTY ACT
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