CACI 3202 Repair Opportunities Explained

California Civil Jury Instructions CACI

3202 “Repair Opportunities” Explained

Each time the [consumer good/new motor vehicle] was given to [name of defendant] [or its authorized repair facility] for repair counts as an opportunity to repair, even if [it/they] did not do any repair work.

In determining whether [name of defendant] had a reasonable number of opportunities to fix the [consumer good/new motor vehicle], you should consider all the circumstances surrounding each repair visit. [Name of defendant] [or its authorized repair facility] must have been given at least two opportunities to fix the [consumer good/new motor vehicle] [unless only one repair attempt was possible because the [consumer good/new motor vehicle] was later destroyed or because [name of defendant] [or its authorized repair facility] refused to attempt the repair].

New September 2003; Revised February 2005, December 2005, June 2006

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Directions for Use

This instruction applies only to claims under Civil Code section 1793.2(d) and not to other claims, such as claims for breach of the implied warranty of merchantability. (See Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 406–407 [7 Cal.Rptr.3d 546].)

The final bracketed portion of the last sentence of this instruction is intended for use only in cases where the evidence shows that only one repair attempt was possible because of the subsequent malfunction and destruction of the vehicle or where the defendant refused to attempt the repair. (See Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750 [52 Cal.Rptr.2d 134]; Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921 [215 Cal.Rptr. 507].)

Sources and Authority

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

“[T]he only affirmative step the Act imposes on consumers is to ‘permit[] the manufacturer a reasonable opportunity to repair the vehicle.’ Whether or not the manufacturer’s agents choose to take advantage of the opportunity, or are unable despite that opportunity to isolate and make an effort to repair the problem, are matters for which the consumer is not responsible.” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103–1104 [109 Cal.Rptr.2d 583], internal citation omitted.)

“Section 1793.2(d) requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle ‘after a reasonable number of attempts.’ ‘Attempts’ is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.” (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 [135 Cal.Rptr.2d 846].)

Secondary Sources

2 California UCC Sales & Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
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 et seq. (Matthew Bender)