California Civil Jury Instructions (CACI)

3244. Civil Penalty - Willful Violation (Civ. Code, § 1794(c))

[Name of plaintiff] claims that [name of defendant]'s failure to [describe violation of Song-Beverly Consumer Warranty Act] was willful and therefore asks that you impose a civil penalty against [name of defendant]. A civil penalty is an award of money in addition to a plaintiff's damages. The purpose of this civil penalty is to punish a defendant or discourage [him/her/it] from committing such violations in the future.

If [name of plaintiff] has proved that [name of defendant]'s failure was willful, you may impose a civil penalty against [him/her/it]. "Willful" means that [name of defendant] knew what [he/she/it] was doing and intended to do it. However, you may not impose a civil penalty if you find that [name of defendant] believed reasonably and in good faith that [describe facts negating statutory obligation].

The penalty may be in any amount you find appropriate, up to a maximum of two times the amount of [name of plaintiff]'s actual damages.

Directions for Use

This instruction is intended for use when the plaintiff requests a civil penalty under Civil Code section 1794(c). The parties will need to draft a separate instruction for cases involving a civil penalty based on the defendant's violation of Civil Code section 1793.2(d)(2).

If there are multiple causes of action, ensure that the jury knows to which claim this instruction applies.

Sources and Authority

Civil Code section 1794 provides, in part:

(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.

. . . .

(c) If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action . . . or with respect to a claim based solely on a breach of an implied warranty.

"[I]f the trier of fact finds the defendant willfully violated its legal obligations to plaintiff, it has discretion under [Civil Code section 1794,] subdivision (c) to award a penalty against the defendant. Subdivision (c) applies to suits concerning any type of 'consumer goods,' as that term is defined in section 1791 of the Act." (Suman v. Superior Court (1995) 39 Cal.App.4th 1309, 1315 [46 Cal.Rptr.2d 507].)

" 'In civil cases, the word "willful," as ordinarily used in courts of law, does not necessarily imply anything blamable, or any malice or wrong toward the other party, or perverseness or moral delinquency, but merely that the thing done or omitted to be done was done or omitted intentionally. It amounts to nothing more than this: That the person knows what he is doing, intends to do what he is doing, and is a free agent.' " (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 894 [263 Cal.Rptr. 64], internal citations omitted.)

"[A] violation is not willful if the defendant's failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present. This might be the case, for example, if the manufacturer reasonably believed the product did conform to the warranty, or a reasonable number of repair attempts had not been made, or the buyer desired further repair rather than replacement or refund. [¶] Our interpretation of section 1794(c) is consistent with the general policy against imposing forfeitures or penalties against parties for their good faith, reasonable actions. Unlike a standard requiring the plaintiff to prove the defendant actually knew of its obligation to refund or replace, which would allow manufacturers to escape the penalty by deliberately remaining ignorant of the facts, the interpretation we espouse will not vitiate the intended deterrent effect of the penalty. And unlike a simple equation of willfulness with volition, which would render 'willful' virtually all cases of refusal to replace or refund, our interpretation preserves the Act's distinction etween willful and nonwillful violations." (Kwan v. Mercedes-Benz of N. America (1994) 23 Cal.App.4th 174, 185 [28 Cal.Rptr.2d 371].)

"[T]he penalty under section 1794(c), like other civil penalties, is imposed as punishment or deterrence of the defendant, rather than to compensate the plaintiff. In this, it is akin to punitive damages." (Kwan, supra, 23 Cal.App.4th at p. 184.)

Secondary Sources

3 Witkin, Summary of California Law (9th ed. 1987) Sales, § 308

1 California UCC Sales & Leases (Cont.Ed.Bar 2002) Warranties, § 3.90

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.30 (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.53[1][b] (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, p. 41

(Revised December 2005)