Do You Need to Read the Warranty First?

Originally published by Los Angeles Daily Journal

Where a written warranty for a consumer product comes wrapped in plastic and sealed in the box, can the manufacturer defeat a breach of warranty claim by contending the consumer could not have relied on the warranty at the time she purchased the goods? In other words, does the fact a written warranty is not read until the goods are delivered and the carton is opened relieve a seller of responsibility for its warranty obligations? Until recently, the answer in California was surprisingly unclear.

Until last month, the Judicial Council of California Civil Jury Instruction (CACI) No. 1240, entitled "Affirmative Defense to Express Warranty — Not 'Basis of Bargain'" provided an affi rmative defense to a claim for breach of express warranty where the defendant could prove that plaintiff did not "rely" on the warranty statements in the guarantee. Although "reliance" long ago had been removed as an element of a cause of