CACI 3331 Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items
California Civil Jury Instructions CACI
3331 Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items
[Name of defendant] claims that any [locality discrimination/below cost sales/loss leader sales] proven by [name of plaintiff] [is/are] within the law because the [product] was being sold as [a close-out/seasonal goods/damaged goods/perishable goods]. To succeed, [name of defendant] must prove both of the following:
1.That [his/her/nonbinary pronoun/its] sales were [insert one or more of the following:]
[in the course of closing out, in good faith, all or any part of [his/her/nonbinary pronoun/its] supply of [product], in order to stop trade in [product];] [or]
[of seasonal goods to prevent loss by depreciation;] [or]
[of perishable goods to prevent loss by spoilage or depreciation;] [or]
[of goods that were damaged or deteriorated in quality;] and
2.That [name of defendant] gave sufficient notice of the sale to the public.
Notice is sufficient only if:
1.The sale goods are kept separate from other goods;
2.The sale goods are clearly marked with the reason[s] for the sales; and
3.Any advertisement of such goods sets forth the reason[s] for the sale and indicates the number of items to be sold.
Directions for Use
This defense applies to locality discrimination, below cost sales, and loss leader sales only.
Sources and Authority
•Exceptions for Close-out, Discontinued, Damaged, or Perishable Items. Business and Professions Code section 17050.