CACI 3222 Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)

California Civil Jury Instructions CACI

3222 Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)

[Name of defendant] contends that [name of plaintiff]’s lawsuit was not filed within the time set by law. To succeed on this defense, [name of defendant] must prove that

[the date of [tender of] delivery occurred before [insert date four years before filing of complaint].]


[any breach was discovered or should have been discovered before [insert date four years before filing of complaint].]

Directions for Use

Use this instruction to assert a limitation defense based on the four-year period of California Uniform Commercial Code section 2725. (See Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305 [95 Cal.Rptr.3d 285] [four-year statute of Cal. U. Com. Code, § 2725 applies to warranty claims under the Song-Beverly Consumer Warranty Act].)

A breach of warranty occurs when tender of delivery is made. (Cal. U. Com. Code, § 2725(2).) Include “tender of” if actual delivery was not made or if delivery was made after tender. If whether a proper tender was made is at issue, the jury should be instructed on the meaning of “tender.” (See Cal. U. Com. Code, § 2503.)

Under the statute, a breach of warranty occurs when tender of delivery is made regardless of the aggrieved party’s knowledge of the breach—that is, there is no delayed-discovery rule. However, if an express warranty explicitly extends to future performance of the goods (for example, a warranty to repair defects for three years or 30,000 miles) and discovery of the breach must await the time of the performance, the cause of action accrues when the breach is or should have been discovered. (Cal. U. Com. Code, § 2725(2).) In such a case, give the second option in the second sentence. If delayed discovery is alleged, CACI No. 455, Statute of Limitations—Delayed Discovery, may be adapted for use. (See Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215–220 [285 Cal.Rptr. 717].)

Under the California Uniform Commercial Code, by the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (Cal. U. Com. Code, § 2725(1).) Presumably, this provision does not apply to claims under the Song-Beverly Act. (See Civ. Code, §§ 1790.1 [buyer’s waiver of rights under Song-Beverly Act is unenforceable], 1790.3 [in case of conflict, provisions of Song-Beverly Act control over Cal. U. Com. Code].)

Sources and Authority

Statute of Limitations Under Commercial Code. California Uniform Commercial Code section 2725.

Buyer’s Waiver of Song-Beverly Protections Not Enforceable. Civil Code section 1790.1.

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

“The [Song Beverly] Act was intended to supplement the provisions of the California Uniform Commercial Code, rather than to supersede the rights and obligations created by that statutory scheme. (See Civ. Code, § 1790.3.) California Uniform Commercial Code section 2725 specifically governs actions for breach of warranty in a sales context. We conclude that this special statute of limitations controls rather than the general provision of Code of Civil Procedure section 338, subdivision (a) for liabilities created by statute.” (Krieger, supra, 234 Cal.App.3d at p. 215.)

“[Defendants] now concede that the statute of limitations for an action for breach of warranty under the Song-Beverly Act is four years pursuant to section 2725 of the California Uniform Commercial Code. Under that statute, a cause of action for breach of warranty accrues, at the earliest, upon tender of delivery. Thus, the earliest date the implied warranty of merchantability regarding [plaintiff]’s boat could have accrued was the date [plaintiff] purchased it … . Because he filed this action three years seven months after that date, he did so within the four-year limitations period. Therefore, [plaintiff]’s action is not barred by a statute of limitations.” (Mexia, supra, 174 Cal.App.4th at p. 1306.)

Secondary Sources

4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 214
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 474, 519, 962
1 California Products Liability Actions, Ch. 8, Statute of Limitations, § 8.02[2] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 500, Sales Under the Commercial Code, § 500.78 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.38, 206.61, 206.62 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining Applicable Statute of Limitations and Effect on Potential Action, 4.05