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Breach: 08. Breach of Express Warranty

1 Elements and Case Citations

  1. The seller made an affirmation of fact or promise or provided a description of its goods;
  2. The promise or description formed the basis of the bargain and created an express warranty that the goods would conform to the description;
  3. The express warranty was breached; and
  4. The plaintiff suffered damages as a result of the breach.

“[B]reach of express warranty, which is governed by California Commercial Code section 2313.” Hauter v. Zogarts, 14 Cal. 3d 104, 115 (1975); and see Cal. Civ. Code §§ 1790 (the “Song-Beverly Consumer Warranty Act”).

At least in Federal Courts, “Plaintiffs must plead the ‘exact terms’ of the express warranty” to avoid dismissal. In re iPhone 4S Consumer Litig., No. C 12-1127 CW, 2013 U.S. Dist. LEXIS 103058, at *51-52 (N.D. Cal. July 23, 2013).


CALIFORNIA STATE COURTS

California Supreme Court: Hauter v. Zogarts, 14 Cal. 3d 104, 115 & n.9 (1975).

California 1st Dist.: Weinstat v. Dentsply Int’l., Inc.,180 Cal. App. 4th 1213, 1227 (2010).

California 2d Dist.: Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986).

California 3d Dist: Osborne v. Subaru of America, Inc., 198 Cal. App. 3d 646, 661 & n.10 (1988).

California 4th Dist.: Appalachian Ins. Co. v. McDonnell Douglas Corp., 214 Cal. App. 3d 1, 35 (1989).

CALIFORNIA FEDERAL COURT

United States Court of Appeal for the 9th Circuit: Chambliss v. GMC, 108 F.3d 1176, 1181 (9th Cir. 1997).

Central District: Avedisian v. Mercedes-Benz USA, LLC, No. CV 12-00936 DMG (CWx), 2013 U.S. Dist. LEXIS 73444, at *6-7 (C.D. Cal. May 22, 2013).

Eastern District: Rossi v. Whirlpool Corp.,No. 12-CV-125-JAM-JFM, 2013 U.S. Dist. LEXIS 46167, at *4-5 (E.D. Cal. Mar. 28, 2013).

Northern District: Bilodeau v. McAfee, Inc.,No. 12-CV-04589-LHK, 2013 U.S. Dist. LEXIS 89226, at *38-39 (N.D. Cal. June 24, 2013).

Southern District: Aguilar v. Boulder Brands, Inc.,No. 12cv01862 BTM (BGS), 2013 U.S. Dist. LEXIS 81378, at *16 (S.D. Cal. June 10, 2013).

2 Defenses to Claim for Breach of Express Warranty

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter __ for all defenses.

(2) Statute of Limitations: Cal. Com. Code § 2725’s four-year statute of limitations governs actions for breach of express warranty concerning goods. “A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Id. at § 2725(2).

(3) Seller’s statements were not the basis of the parties’ bargain. “Any affirmation, once made, is part of the agreement unless there is “clear affirmative proof” that the affirmation has been taken out of the agreement.” See Weinstat v. Dentsply Internat., Inc.,180 Cal. App. 4th 1213, 1229 (2010). However, “attempts to negate or limit express warranties shall be ‘inoperative to the extent that such construction is unreasonable.’” Appalachian Ins. Co. v. McDonnell Douglas Corp., 214 Cal. App. 3d 1, 35 (1989) (quoting Cal. Comm. Code § 2316).

(4) Lack of Notice: The purchaser failed to notify the seller of the breach after he or she should have discovered the breach. See Cal. Com. Code § 2607(3)(a).

(5) Statements which are non-actionable puffery do not constitute an express warranty. See Sanders v. Apple Inc., 672 F. Supp. 2d 978, 987 (N.D. Cal. 2009); Osborne v. Subaru of America, Inc., 198 Cal. App. 3d 646, 660 n.8 (1998) (“Sellers are permitted to ‘puff’ their products by stating opinions about the quality of the goods so long as they do not cross the line and make factual representations about important characteristics like a product’s safety.”).

(6) “Privity is not required for an action based upon an express warranty.” Hauter v. Zogarts, 14 Cal. 3d 104, 115 n.8 (1975).

(7) Reliance Not Required: “[B]reach of express warranty arises in the context of contract formation in which reliance plays no role.” Weinstat v. Dentsply Int’l., Inc., 180 Cal. App. 4th 1213, 1227 (2010). Although “[p]re-Uniform Commercial Code law governing express warranties required the purchaser to prove reliance on specific promises made by the seller. . . . [but t]he California Uniform Commercial Code, however, does not require such proof.” Id.; but see Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986) (suggesting that reliance is required by “can be reasonably inferred from the tenor and totality of the allegations in the complaint”).

(8) Where the buyer inspects the goods before purchase, he may be deemed to have waived the seller’s express warranties. But an examination or inspection by the buyer does not necessarily discharge the seller from an express warranty if the defect was not actually discovered and waived. See Keith v. Buchanan, 173 Cal. App. 3d 13, 24 (1985).

(9) Opinion: “[E]ven statements of opinion can become warranties under the [UCC] if they become part of the basis of the bargain.” Hauter v. Zogarts, 14 Cal. 3d 104, 115 n.10 (1975).