CACI 3241 Restitution From Manufacturer—New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2), 1794(b))

California Civil Jury Instructions CACI

3241 Restitution From Manufacturer—New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2), 1794(b))

If you decide that [name of defendant] or its authorized repair facility failed to repair the defect(s) after a reasonable number of opportunities, then [name of plaintiff] is entitled to recover the amounts [he/she/nonbinary pronoun] proves [he/she/nonbinary pronoun] paid for the car, including:

1.The amount paid to date for the vehicle, including finance charges [and any amount still owed by [name of plaintiff]];

2.Charges for transportation and manufacturer-installed options; and

3.Sales tax, use tax, license fees, registration fees, and other official fees.

In determining the purchase price, do not include any charges for items supplied by someone other than [name of defendant].

[[Name of plaintiff]’s recovery must be reduced by the value of the use of the vehicle before it was [brought in/submitted] for repair. [Name of defendant] must prove how many miles the vehicle was driven between the time when [name of plaintiff] took possession of the vehicle and the time when [name of plaintiff] first delivered it to [name of defendant] or its authorized repair facility to fix the defect. [Insert one of the following:]

[Using this mileage number, I will reduce [name of plaintiff]’s recovery based on a formula.]

[Multiply this mileage number by the purchase price, including any charges for transportation and manufacturer-installed options, and divide that amount by 120,000. Deduct the resulting amount from [name of plaintiff]’s recovery.]]

New September 2003; Revised February 2005, June 2005, December 2011, June 2012

Crowdsource Lawyers

Directions for Use

This instruction is intended for use with claims involving new motor vehicles under the Song-Beverly Consumer Warranty Act. The remedy is replacement of the vehicle or restitution. (Civ. Code, § 1793.2(d)(2).) For claims involving other consumer goods, see CACI No. 3240, Reimbursement Damages—Consumer Goods.

Incidental damages are recoverable as part of restitution. (Civ. Code, § 1793.2(d)(2)(B).) For an instruction on incidental damages, see CACI No. 3242, Incidental Damages. See also CACI No. 3243, Consequential Damages.

The remedies for new motor vehicles provided by Civil Code section 1793.2(d)(2) apply to all claims under the Song-Beverly Consumer Warranty Act. (Civ. Code, § 1794(b).) These remedies are also available for implied-warranty claims. (See Civ. Code, § 1791.1(d).) The first paragraph of this instruction can be modified if it is being used for claims other than those brought under Civil Code section 1793.2(d)(2).

Modify element 1 depending on whether plaintiff still has an outstanding obligation on the financing of the vehicle.

The last two bracketed options are intended to be read in the alternative. Use the last bracketed option if the court desires for the jury to make the calculation of the deduction. The “formula” referenced in the last bracketed paragraph can be found at Civil Code section 1793.2(d)(2)(C).

Additional remedies under the California Uniform Commercial Code are provided for “goods.” (See Civ. Code, § 1794(b).) Although consumer goods and new motor vehicles are treated differently under Civil Code section 1793.2, “consumer goods” are defined broadly under Song-Beverly (see Civ. Code, § 1791(a) [“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]). At least one court has applied the California Uniform Commercial Code remedies for new motor vehicles. (See Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 302 [45 Cal.Rptr.2d 10].)

Sources and Authority

Measure of Buyer’s Damages. Civil Code section 1794(b).

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

“[A]s the conjunctive language in Civil Code section 1794 indicates, the statute itself provides an additional measure of damages beyond replacement or reimbursement and permits, at the option of the buyer, the Commercial Code measure of damages which includes ‘the cost of repairs necessary to make the goods conform.’ ” (Krotin, supra, 38 Cal.App.4th at p. 302, internal citation omitted.)

“[I]n the usual situation, emotional distress damages are not recoverable under the Song-Beverly Consumer Warranty Act.” (Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 625, fn. 15 [39 Cal.Rptr.2d 159], emphasis in original; see also Kwan v. Mercedes-Benz of N. Am. (1994) 23 Cal.App.4th 174, 187–192 [28 Cal.Rptr.2d 371].)

“[F]inding an implied prohibition on recovery of finance charges would be contrary to both the Song-Beverly Consumer Warranty Act’s remedial purpose and section 1793.2(d)(2)(B)’s description of the refund remedy as restitution. A more reasonable construction is that the Legislature intended to allow a buyer to recover the entire amount actually expended for a new motor vehicle, including paid finance charges, less any of the expenses expressly excluded by the statute.” (Mitchell v. Blue Bird Body Co. (2000) 80 Cal.App.4th 32, 37 [95 Cal.Rptr.2d 81].)

“[Defendant] argues that [plaintiff] would receive a windfall if he is not required to pay for using the car after his buyback request. But to give [defendant] an offset for that use would reward it for its delay in replacing the car or refunding [plaintiff]’s money when it had complete control over the length of that delay, and an affirmative statutory duty to replace or refund promptly.” (Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1244 [13 Cal.Rptr.3d 679].)

“[T]he imposition of a requirement that [plaintiff] mitigate his damages so as to avoid rental car expenses—after [defendant] had a duty to respond promptly to [plaintiff]’s demand for restitution—would reward [defendant] for its delay in refunding [plaintiff]’s money.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1053 [104 Cal.Rptr.3d 853].)

Secondary Sources

4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 331, 334
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving Defects and Repairs, § 91.18 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.127, 206.128 (Matthew Bender)
California Civil Practice: Business Litigation § 53:26 (Thomson Reuters)