Goods to be merchantable must be at least such as
(a) Pass without objection in the trade under the contract description; and
(b) In the case of fungible goods, are of fair average quality within the description; and
(c) Are fit for the ordinary purposes for which such goods are used; and
(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) Are adequately contained, packaged, and labeled as the agreement may require; and
(f) Conform to the promises or affirmations of fact made on the container or label if any.
See Cal. Com. Code § 2314.
For sale and leases of “Consumer Goods:”
- Plaintiff bought a consumer good manufactured by defendant;
- At the time of purchase, defendant was in the business of selling consumer goods to retail buyers;
- The product was not of the same quality as those generally acceptable in the trade, or was not fit for the ordinary purposes for which the product is used, or did not conform to the quality established by the parties' prior dealings or by usage of trade; and
- The failure of the product to have the expected quality was a substantial factor in causing Plaintiff's harm.
See Cal. Civ. Code §§ 1790, et seq., California’s Song-Beverly Consumer Warranty Act; see American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 1295 (1995) (“The Song-Beverly Act incorporates the provisions of [Commercial Code] sections 2314 and 2315. It ‘supplements, rather than supersedes, the provisions of the California Uniform Commercial Code’ by broadening a consumer’s remedies to include costs, attorney’s fees, and civil penalties.”).
CALIFORNIA STATE COURTS
California Supreme Court: Mexicali Rose v. Superior Court, 1 Cal. 4th 617, 622 n.3 (1992); Hauter v. Zogarts, 14 Cal. 3d 104, 117 (1975).
California 1st Dist.: Pisano v. Am. Leasing, 146 Cal. App. 3d 194, 198 (1983).
California 2d Dist.: Isip v. Mercedes-Benz USA, LLC, 155 Cal. App. 4th 19, 26 (2007).
California 3d Dist.: Brittalia Ventures v. Stuke Nursery Co., Inc., 153 Cal. App. 4th 17, 27 & n.2 (2007).
California 4th Dist.: Mexia v. Rinker Boat Co., Inc., 174 Cal. App. 4th 1297, 1303 (2009).
California 5th Dist.: Pierce v. Western Surety Co., 207 Cal. App. 4th 83, 90-91 (2012); Mills v. Forestex Co., 108 Cal. App. 4th 625, 636 (2003).
California 6th Dist.: Atkinson v. Elk Corp. of Texas., 142 Cal. App. 4th 212, 215 (2006).
CALIFORNIA FEDERAL COURT
Ninth Circuit Court of Appeal: Troup v. Toyota Motor Corp., No. 11-56637, 2013 U.S. App. LEXIS 23338, at *3-4 (9th Cir. Nov. 20, 2013).
Central District: Guido v. L'Oreal, USA, Inc., No. CV-11-1067 CAS (JCx), 2013 U.S. Dist. LEXIS 94031, at *33-34 (C.D. Cal. July 1, 2013).
Eastern District: Daniel v. Ford Motor Co., No. CIV. 2:11-02890 WBS EFB, 2013 U.S. Dist. LEXIS 80638, at *20 (E.D. Cal. June 7, 2013).
Northern District: Elias v. Hewlett-Packard Co., No. 12-CV-00421-LHK, 2013 U.S. Dist. LEXIS 87748, at *15-16 (N.D. Cal. June 21, 2013).
Southern District: Clark v. LG Elecs. U.S.A., Inc., No. 3:13-CV-485-JM (JMA), 2013 U.S. Dist. LEXIS 155179, at *27-28 (S.D. Cal. Oct. 29, 2013).