CACI No. 3244. Civil Penalty - Willful Violation (Civ. Code, § 1794(c))

Judicial Council of California Civil Jury Instructions (2017 edition)

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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, 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/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
New September 2003; Revised February 2005, December 2005, December 2011
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.
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 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.)
• “[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 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.)
• “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.” (Kwan v. Mercedes Benz of N.
Am. (1994) 23 Cal.App.4th 174, 184 [28 Cal.Rptr.2d 371].)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 321–324
1California 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)
5 California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
3245–3299. Reserved for Future Use

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