CACI No. 3244. Civil Penalty - Willful Violation (Civ. Code, § 1794(c))
Judicial Council of California Civil Jury Instructions (2023 edition)
Download PDF
3244.Civil Penalty - Willful Violation (Civ. Code, § 1794(c))
[Name of plaintiff] claims that [name of defendant]’s failure to [describe
obligation under Song-Beverly Consumer Warranty Act, e.g., repurchase or
replace the vehicle after a reasonable number of repair opportunities] 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/nonbinary pronoun/it] from committing
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/nonbinary
pronoun/it]. 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.
“Willful” means that [name of defendant] knew of [his/her/nonbinary
pronoun/its] legal obligations and intentionally declined to follow them.
However, a violation is not willful if you find that [name of defendant]
reasonably and in good faith believed that the facts did not require
[describe statutory obligation, e.g., repurchasing or replacing the vehicle].
New September 2003; Revised February 2005, December 2005, December 2011,
May 2018, November 2018
Directions for Use
This instruction is intended for use when the plaintiff requests a civil penalty under
Civil Code section 1794(c). In the opening paragraph, set forth all claims for which
a civil penalty is sought.
An automobile buyer may also obtain a penalty of two times actual damages
without a showing of willfulness under some circumstances. (See Civ. Code,
§ 1794(e).) However, a buyer who recovers a civil penalty for a willful violation
may not also recover a second civil penalty for the same violation. (Civ. Code,
§ 1794(e)(5).) If the buyer seeks a penalty for either a willful or a nonwillful
violation in the alternative, the jury must be instructed on both remedies. (See
Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 11 [28 Cal.Rptr.2d
133].) A special instruction will be needed for the nonwillful violation. (See Suman
v. Superior Court (1995) 39 Cal.App.4th 1309, 1322 [46 Cal.Rptr.2d 507] (Suman
II) [setting forth instructions to be given on retrial].)
Depending on the nature of the claim at issue, factors that the jury may consider in
determining willfulness may be added. (See, e.g., Jensen v. BMW of North America,
Inc. (1995) 35 Cal.App.4th 112, 136 [41 Cal.Rptr.2d 295] [among factors to be
considered by the jury are whether (1) the manufacturer knew the vehicle had not
513
been repaired within a reasonable period or after a reasonable number of attempts,
and (2) whether the manufacturer had a written policy on the requirement to repair
or replace].)
Sources and Authority
• Civil Penalty for Willful Violation. Civil Code section 1794(c).
• “[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].)
• “Whether a manufacturer willfully violated its obligation to repair the car or
refund the purchase price is a factual question for the jury that will not be
disturbed on appeal if supported by substantial evidence.” (Oregel v. American
Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104 [109 Cal.Rptr.2d 583].
• “ ‘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.)
• “In regard to the willful requirement of Civil Code section 1794, subdivision (c),
a civil penalty may be awarded if the jury determines that the manufacturer
‘knew of its obligations but intentionally declined to fulfill them. There is no
requirement of blame, malice or moral delinquency. However, ‘. . . 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.’ ” (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th
1242, 1249-1250 [40 Cal.Rptr.2d 576], original italics, internal citations omitted;
see also Bishop v. Hyundai Motor Am. (1996) 44 Cal.App.4th 750, 759 [52
Cal.Rptr.2d 134] [defendant agreed that jury was properly instructed that it
“acted ‘willfully’ if you determine that it knew of its obligations under the Song-
Beverly Act but intentionally declined to fulfill them”].)
• “[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
CACI No. 3244 SONG-BEVERLY CONSUMER WARRANTY ACT
514
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 between willful and nonwillful violations. Accordingly, ‘[a]
decision made without the use of reasonably available information germane to
that decision is not a reasonable, good faith decision.’ ” (Lukather v. General
Motors, LLC (2010) 181 Cal.App.4th 1041, 1051 [104 Cal.Rptr.3d 853], original
italics, internal citation omitted.)
• “[Defendant] was entitled to an instruction informing the jury its failure to
refund or replace was not willful if it reasonably and in good faith believed the
facts did not call for refund or replacement. Such an instruction would have
given the jury legal guidance on the principal issue before it in determining
whether a civil penalty could be awarded.” (Kwan v. Mercedes Benz of N. Am.
(1994) 23 Cal.App.4th 174, 186-187 [28 Cal.Rptr.2d 371], fn. omitted.)
• “There is evidence [defendant] was aware that numerous efforts to find and fix
the oil leak had been unsuccessful, which is evidence a jury may consider on the
question of willfulness. Additionally, the jury could conclude that [defendant]’s
policy, which requires a part be replaced or adjusted before [defendant] deems it
a repair attempt but excludes from repair attempts any visit during which a
mechanic searches for but is unable to locate the source of the problem, is
unreasonable and not a good faith effort to honor its statutory obligations to
repurchase defective cars. Finally, there was evidence that [defendant] adopted
internal policies that erected hidden obstacles to the ability of an unwary
consumer to obtain redress under the Act. This latter evidence would permit a
jury to infer that [defendant] impedes and resists efforts by a consumer to force
[defendant] to repurchase a defective car, regardless of the presence of an
unrepairable defect, and that [defendant]’s decision to reject [plaintiff]’s demand
was made pursuant to [defendant]’s policies rather than to its good faith and
reasonable belief the car did not have an unrepairable defect covered by the
warranty or that a reasonable number of attempts to effect a repair had not yet
occurred.” (Oregel, supra, 90 Cal.App.4th at pp. 1104-1105, internal citations
omitted.)
• “[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. Neither punishment nor
deterrence is ordinarily called for if the defendant’s actions proceeded from an
honest mistake or a sincere and reasonable difference of factual evaluation. As
our Supreme Court recently observed, ‘. . . courts refuse to impose civil
penalties against a party who acted with a good faith and reasonable belief in the
legality of his or her actions.’ ” (Kwan,supra, 23 Cal.App.4th at pp. 184-185,
internal citation omitted.)
• “Thus, when the trial court concluded that subdivision (c)’s requirement of
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3244
515
willfulness applies also to subdivision (e), and when it, in effect, instructed the
jury that subdivision (c)-type willfulness is the sole basis for awarding civil
penalties, the court ignored a special distinction made by the Legislature with
respect to the seller of new automobiles. In so doing, the court erred. The error
was prejudicial because it prevented the jurors from considering the specific
penalty provisions in subdivision (e) and awarding such penalties, in their
discretion, if they determined the evidence warranted such an award.” (Suman,
supra, 23 Cal.App.4th at p. 11.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 321-324
1 California UCC Sales & Leases (Cont.Ed.Bar) 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, § 206.129 (Matthew Bender)
California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
3245-3299. Reserved for Future Use
CACI No. 3244 SONG-BEVERLY CONSUMER WARRANTY ACT
516
© Judicial Council of California.
