CACI 3200 Failure to Repurchase or Replace Consumer Good After Reasonable Number of Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))

California Civil Jury Instructions CACI

3200 Failure to Repurchase or Replace Consumer Good After Reasonable Number of Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by [name of defendant]’s failure to repurchase or replace [a/an] [consumer good] after a reasonable number of repair opportunities. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] bought [a/an] [consumer good] [from/distributed by/manufactured by] [name of defendant];

2.That [name of defendant] gave [name of plaintiff] a warranty by [insert at least one of the following:]

[making a written statement that [describe alleged express warranty];] [or]

[showing [him/her/nonbinary pronoun] a sample or model of the [consumer good] and representing, by words or conduct, that [his/her/nonbinary pronoun] [consumer good] would match the quality of the sample or model;]

3.That the [consumer good] [insert at least one of the following:]

[did not perform as stated for the time specified;] [or]

[did not match the quality [of the [sample/model]] [or] [as set forth in the written statement];]

4.[That [name of plaintiff] delivered the [consumer good] to [name of defendant] or its authorized repair facilities for repair;]


[That [name of plaintiff] notified [name of defendant] in writing of the need for repair because [he/she/nonbinary pronoun] reasonably could not deliver the [consumer good] to [name of defendant] or its authorized repair facilities because of the [size and weight/method of attachment/method of installation] [or] [the nature of the defect] of the [consumer good]]; [and]

5.That [name of defendant] or its representative failed to repair the [consumer good] to match the [written statement/represented quality] after a reasonable number of opportunities; [and]

6.[That [name of defendant] did not replace the [consumer good] or reimburse [name of plaintiff] an amount of money equal to the purchase price of the [consumer good], less the value of its use by [name of plaintiff] before discovering the defect[s].]

[A written statement need not include the words “warranty” or “guarantee,” but if those words are used, a warranty is created. It is also not necessary for [name of defendant] to have specifically intended to create a warranty. A warranty is not created if [name of defendant] simply stated the value of the [consumer good] or gave an opinion about the [consumer good]. General statements concerning customer satisfaction do not create a warranty.]

New September 2003; Revised April 2007, December 2007, December 2011

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Directions for Use

An instruction on the definition of “consumer good” may be necessary if that issue is disputed. Civil Code section 1791(a) provides: “ ‘Consumer goods’ means any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. ‘Consumer goods’ shall include new and used assistive devices sold at retail.”

Select the alternative in element 4 that is appropriate to the facts of the case.

Regarding element 4, if the plaintiff claims that the consumer goods could not be delivered for repair, the judge should decide whether written notice of nonconformity is required. The statute, Civil Code section 1793.2(c), is unclear on this point.

Depending on the circumstances of the case, further instruction on element 6 may be needed to clarify how the jury should calculate “the value of its use” during the time before discovery of the defect.

If remedies are sought under the California Uniform Commercial Code, the plaintiff may be required to prove reasonable notification within a reasonable time. (Cal. U. Com. Code, § 2607(3).) If the court determines that proof is necessary, add the following element to this instruction:

That [name of plaintiff] took reasonable steps to notify [name of defendant] within a reasonable time that the [consumer good] [did not match the quality [of the [sample/model]]/as set forth in the written statement];

See also CACI No. 1243, Notification/Reasonable Time.

If appropriate to the facts, add: “It is not necessary for [name of plaintiff] to prove the cause of a defect in the [consumer good].” The Song-Beverly Consumer Warranty Act does not require a consumer to prove the cause of the defect or failure, only that the consumer good “did not conform to the express warranty.” (See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8 [109 Cal.Rptr.2d 583].)

In addition to sales of consumer goods, the Consumer Warranty Act applies to leases. (Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified for use in cases involving an express warranty in a lease of consumer goods.

See also CACI No. 3202, “Repair Opportunities” Explained.

Sources and Authority

Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section 1794(a).

“Express Warranty” Defined. Civil Code section 1791.2.

Express Warranty Made by Someone Other Than Manufacturer. Civil Code section 1795.

Replacement or Reimbursement After Reasonable Number of Repair Attempts. Civil Code section 1793.2(d).

Extension of Warranty. Civil Code section 1793.1(a)(2).

Buyer’s Delivery of Nonconforming Goods. Civil Code section 1793.2(c).

Distributor or Seller of Used Consumer Goods. Civil Code section 1795.5.

Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.

Extension of Warranty Period for Repairs. Civil Code section 1793.1(a)(2).

Tolling of Warranty Period for Nonconforming Goods. Civil Code section 1795.6.

“ ‘The Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty … . One of the most significant protections afforded by the act is … that “if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer … .” …’ In providing these remedies, the Legislature has not required that the consumer maintain possession of the goods at all times. All that is necessary is that the consumer afford the manufacturer a reasonable number of attempts to repair the goods to conform to the applicable express warranties.” (Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187, 191 [122 Cal.Rptr.3d 497], internal citation omitted.)

Broadly speaking, the Act regulates warranty terms; imposes service and repair obligations on manufacturers, distributors and retailers who make express warranties; requires disclosure of specified information in express warranties; and broadens a buyer’s remedies to include costs, attorney fees and civil penalties … [¶] [T]he purpose of the Act has been to provide broad relief to purchasers of consumer goods with respect to warranties.” (National R.V., Inc. v. Foreman (1995) 34 Cal.App.4th 1072, 1080 [40 Cal.Rptr.2d 672].)

“[S]ection 1793.2, subdivision (d)(2), differs from section 1793.2, subdivision (d)(1), in that it gives the new motor vehicle consumer the right to elect restitution in lieu of replacement; provides specific procedures for the motor vehicle manufacturer to follow in the case of replacement and in the case of restitution; and sets forth rules for offsetting the amount attributed to the consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly provide greater consumer protections to those who purchase new motor vehicles than are afforded under the general provisions of the Act to those who purchase other consumer goods under warranty.” (National R.V., Inc., supra, 34 Cal.App.4th at p.1079, internal citations and footnotes omitted.)

The act does not require a consumer to give a manufacturer, in addition to its local representative, at least one opportunity to fix a problem. Regarding previous repair efforts entitling an automobile buyer to reimbursement, “[t]he legislative history of [Civil Code section 1793.2] demonstrates beyond any question that … a differentiation between manufacturer and local representative is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 888 [263 Cal.Rptr. 64].)

Secondary Sources

4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 52, 57, 321–334
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 3.4, 3.8, 3.15, 3.87
2 California UCC Sales and Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
2 California UCC Sales and Leases (Cont.Ed.Bar) Litigation Remedies, § 18.25
2 California UCC Sales and Leases (Cont.Ed.Bar) Leasing of Goods, § 19.38
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving Defects and Repairs, § 91.15 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.100 et seq. (Matthew Bender)
California Civil Practice: Business Litigation. §§ 53:1, 53:3–53:4, 53:10–53:11, 53:14–53:17, 53:22–53:23, 53:26–53:27 (Thomson Reuters)