CACI 3201 Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable Number of Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))

California Civil Jury Instructions CACI

3201 Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable Number of Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))

[Name of plaintiff] claims that [name of defendant] failed to promptly repurchase or replace [a/an] [new motor vehicle] 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/leased] [a/an] [new motor vehicle] [from/distributed by/manufactured by] [name of defendant];

2.That [name of defendant] gave [name of plaintiff] a written warranty that [describe alleged express warranty];

3.That the vehicle had [a] defect[s] that [was/were] covered by the warranty and that substantially impaired its use, value, or safety to a reasonable person in [name of plaintiff]’s situation;

4.[That [name of plaintiff] delivered the vehicle to [name of defendant] or its authorized repair facility for repair of the defect[s];]


[That [name of plaintiff] notified [name of defendant] in writing of the need for repair of the defect[s] because [he/she/nonbinary pronoun] reasonably could not deliver the vehicle to [name of defendant] or its authorized repair facility because of the nature of the defect[s];]

5.That [name of defendant] or its authorized repair facility failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so; and

6.That [name of defendant] did not promptly replace or buy back the vehicle.

[It is not necessary for [name of plaintiff] to prove the cause of a defect in the [new motor vehicle].]

[A written warranty 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 vehicle or gave an opinion about the vehicle. General statements concerning customer satisfaction do not create a warranty.]

New September 2003; Revised February 2005, December 2005, April 2007, December 2007, December 2011

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Directions for Use

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 [new motor vehicle] had a defect covered by the warranty;

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

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.

Include the bracketed sentence preceding the final bracketed paragraph if appropriate to the facts. 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 a motor vehicle.

See also CACI No. 3202, “Repair Opportunities” Explained, CACI No. 3203, Reasonable Number of Repair Opportunities—Rebuttable Presumption, and CACI No. 3204, “Substantially Impaired” Explained.

Sources and Authority

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

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

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

“Express Warranty” Defined. Civil Code section 1791.2.

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

“New Motor Vehicle” Defined. Civil Code section 1793.22(e)(2).

Replacement or Reimbursement After Reasonable Number of Repair Attempts. Civil Code section 1793.2(d)(2).

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

Extension of Warranty. 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].)

“A plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).” (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152 [158 Cal.Rptr.3d 180].)

The Song-Beverly Act does not apply unless the vehicle was purchased in California. (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 490 [30 Cal.Rptr.3d 823, 115 P.3d 98].)

“Under well-recognized rules of statutory construction, the more specific definition [of ‘new motor vehicle’] found in the current section 1793.22 governs the more general definition [of ‘consumer goods’] found in section 1791.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 126 [41 Cal.Rptr.2d 295].)

“ ‘Nonconformity’ is defined as ‘a nonconformity which substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee.’ The term is similar to what the average person would understand to be a ‘defect.’ ” (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249 [40 Cal.Rptr.2d 576], internal citation omitted; see also Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 801, fn. 11 [50 Cal.Rptr.3d 731] [nonconformity can include entire complex of related conditions].)

“The issue of whether the problems constituted substantial impairment is one for the trier of fact.” (Schreidel, supra, 34 Cal.App.4th at p. 1250.)

“[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].)

“[T]he only affirmative step the Act imposes on consumers is to ‘permit[] the manufacturer a reasonable opportunity to repair the vehicle.’ ” (Oregel, supra, 90 Cal.App.4th at p. 1103, original italics, internal citation omitted.)

“[T]he Act does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties—other than, of course, permitting the manufacturer a reasonable opportunity to repair the vehicle … . In reality, … , the manufacturer seldom on its own initiative offers the consumer the options available under the Act: a replacement vehicle or restitution. Therefore, as a practical matter, the consumer will likely request replacement or restitution. But the consumer’s request is not mandated by any provision in the Act. Rather, the consumer’s request for replacement or restitution is often prompted by the manufacturer’s unforthright approach and stonewalling of fundamental warranty problems.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1050 [104 Cal.Rptr.3d 853], original italics.)

“[Defendant] argues allowing evidence of postwarranty repairs extends the term of its warranty to whatever limit an expert is willing to testify. We disagree. Evidence that a problem was fixed for a period of time but reappears at a later date is relevant to determining whether a fundamental problem in the vehicle was ever resolved. Indeed, that a defect first appears after a warranty has expired does not necessarily mean the defect did not exist when the product was purchased. Postwarranty repair evidence may be admitted on a case-by-case basis where it is relevant to showing the vehicle was not repaired to conform to the warranty during the warranty’s existence.” (Donlen, supra, 217 Cal.App.4th at p. 149, internal citations omitted.)

“[W]e hold that registration renewal and nonoperation fees are not recoverable as collateral charges under section 1793.2, subdivision (d)(2)(B), part of the Act because they are not collateral to the price paid for the vehicle, but they are recoverable as incidental damages under section 1794, part of the Act if they were incurred and paid as a result of a manufacturer’s failure to promptly provide a replacement vehicle or restitution under section 1793.2, subdivision (d)(2).” (Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 987 [266 Cal.Rptr.3d 346, 470 P.3d 56].)

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, §§ 7.4, 7.8, 7.15, 7.87; id., Prelitigation Remedies, § 13.68; id., Litigation Remedies, § 14.25, id., Division 10: Leasing of Goods, § 17.31
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, § 206.104 (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)