I.8 Sample Instructions in Odometer Case

The following are adapted from instructions proposed for use in an automobile fraud case brought before a jury in California state court. The claims involve the federal Odometer Act, the California UDAP statute, and common law fraud. The instructions dealing with federal law are generally applicable in any jurisdiction; the instructions relating to state law will have to altered for use in states outside California. The consumer’s attorney in this case was Michael Lindsey of San Diego, California.

Three additional sets of jury instructions are found on the CD-Rom accompanying this manual:

* Jury instructions on fraud, negligence, and UDAP claims, and on damages for odometer violations, in a federal case involving misrepresentation of a vehicle’s condition, prepared by attorney Richard Feferman of Albuquerque, New Mexico.1 This set also includes instructions on debt collection violations and the creditor’s counterclaim for the debt.

* Jury instructions on fraud and UDAP counts in a case involving misrepresentation of the features of a vehicle, prepared by attorney John Cole Gayle of Richmond, Virginia.2

* A set of jury instructions for Magnuson-Moss Warranty Act warranty claims, prepared by Michigan attorney Dani K. Liblang.3

SPECIAL JURY INSTRUCTION NO. 1

Under the Federal Odometer Act, plaintiff has the burden of establishing against defendant(s) FARMERS INSURANCE EXCHANGE or INSURANCE AUTO AUCTIONS, by a preponderance of the , all facts necessary to prove each of the following elements:

a. That plaintiff was the purchaser of the vehicle;

1 These instructions may also be found in National Consumer Law Center, Consumer Law Pleadings No. 5, § 3.4 (Cumulative CD-Rom and Index Guide). 2 This set of jury instructions may be found on the CD-Rom accompanying this manual under the title Jury Instructions--Misrepresentation of Vehicle Features Case. 3 These instructions may also be found in National Consumer Law Center, Consumer Law Pleadings No. 5, § 6.3 (Cumulative CD-Rom and Index Guide). b. That the mileage of the vehicle was other than what was disclosed;

c. That defendant knew or should have known that the mileage was other than what was disclosed;

d. That defendant failed to disclose the actual mileage, or the fact that the true mileage was unknown, with intent to defraud plaintiff(s); or,

e. That defendant acted with reckless disregard for the truth by failing to disclose the actual mileage, or the fact that the true mileage was unknown.

“Preponderance of the evidence” means that which is more convincing than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.

You should consider all of the evidence bearing upon every issue regardless of who produced it.

SPECIAL JURY INSTRUCTION NO. 2

A person or company transferring ownership of a motor vehicle shall give the transferee a written disclosure

(A) of the cumulative mileage registered by the odometer; or

(B) disclosure that the actual mileage is unknown, if the transferor knew that the odometer reading is different from the number of miles the vehicle has actually traveled.

SPECIAL JURY INSTRUCTION NO. 3

Federal odometer law requires the transferor of a vehicle to provide a disclosure statement if the odometer reading is less than the number of miles the vehicle has been driven, or if the odometer has turned over, if such fact is known or without reckless disregard for the truth should have been known.

SPECIAL JURY INSTRUCTION NO. 4 A person acquiring a motor vehicle for resale may accept an odometer disclosure only if it is complete.

SPECIAL JURY INSTRUCTION NO. 5

A motor vehicle may not be licensed for use in a state unless the transferee includes with the application the transferor’s title, with the mileage disclosure signed and dated by the transferor.

SPECIAL JURY INSTRUCTION NO. 6

Reckless disregard for the truth is sufficient to prove intent to defraud.

SPECIAL JURY INSTRUCTION NO. 7

Mere reliance on the odometer reading, in face of other readily ascertainable information from the title and condition of vehicle, may be reckless disregard rising to the level of intent to defraud.

SPECIAL JURY INSTRUCTION NO. 8 [Damages Under the Federal Odometer Act]

If you find that defendant violated the Federal Odometer Act with intent to defraud, or reckless disregard for the truth, you may award damages, if any, and the court will treble damages in accordance with the statute.4

SPECIAL JURY INSTRUCTION NO. 9

The measure of damages, if any, is the difference between the amount paid by plaintiffs and the fair market retail value of the same vehicle plus such outlays as are legitimately attributable to acts of the defendants. In determining a vehicle’s fair market value consider both the number of miles actually traveled by the car and the impact on value of the fact that an odometer disclosure at a subsequent sale must disclose the odometer reading as inaccurate.5

SPECIAL JURY INSTRUCTION NO. 10

4 For a discussion whether the jury should be told at this point that the damages will be trebled by the court, see § 9.9.7, supra. 5 This instruction has been significantly amended for use in this manual. [Consumer Legal Remedies Act]6

In this case plaintiff seeks to recover against defendant by establishing liability for violation of the California Consumer Legal Remedies Act [Cal. Civ. Code § 1770 (West)] on which I will now instruct you.

Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish a claim for violation of the Consumer Legal Remedies Act. Plaintiff has the burden of showing:

1. Defendant acted in violation of the act in a transaction involving the sale or lease of consumer products and services.

2. Plaintiff suffered damages as a result.

“Preponderance of evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue is greater, your finding on that issue must be against the party who had the burden of proving it.

You should consider all of the evidence bearing upon every issue regardless of who produced it.

SPECIAL JURY INSTRUCTION NO. 11 [Unlawful Practices Under the Consumer Legal Remedies Act]

The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful:

. . .

(3) Misrepresenting the affiliation, connection, or association with, or certification by, another.

. . .

(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses,

6 This statute is one of two California UDAP statutes. This instruction will have to be adapted for each state’s UDAP statute. benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.

. . .

(9) Advertising goods or services with intent not to sell them as advertised.7

SPECIAL JURY INSTRUCTION NO. 12

Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by [Cal. Civ. Code § 1770 (West)] is entitled to recover the actual damages if any.

SPECIAL JURY INSTRUCTION NO. 13

A consumer must do the following thirty days or more before bringing an action under the Consumer Legal Remedies Act:

(1) Notify the person of the alleged violations of [Cal. Civ. Code § 1770 (West)].

(2) Demand that such person correct, repair, replace or otherwise rectify the goods or services alleged to be in violation of [Cal. Civ. Code § 1770 (West)].

Such notice shall be in writing and shall be sent by certified or registered mail, return receipt requested.

SPECIAL JURY INSTRUCTION NO. 14

“As is” is not a defense to the two causes of action in this case.

SPECIAL JURY INSTRUCTION NO. 15 [Continued Use of the Vehicle]

The fact that Plaintiff continued to use the vehicle after reporting a condition or bringing this lawsuit does not constitute a waiver of the right to obtain relief in this action. Ibrahim v. Ford Motor Co., 214 Cal. App. 3d 878, 897/-/898 (1989).

7 These numbers refer to subsections of Cal. Civ. Code § 1770 (West), one of the California UDAP statutes. SPECIAL JURY INSTRUCTION NO. 16 [Burden of Proof and Clear and Convincing Evidence]

For purposes of assessing punitive damages only, the plaintiff has the burden of proving by clear and convincing evidence all of the facts necessary to establish that INSURANCE AUTO AUCTIONS acted with fraud, oppression or malice towards the plaintiff.

“Clear and convincing” evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence.

You should consider all of the evidence bearing upon every issue regardless of who produced it.

SPECIAL JURY INSTRUCTION NO. 17 [Punitive Damages, Recovery of (Bifurcated Trial--First Phase)]

If you find that plaintiff suffered actual injury, harm, or damage as a result of either the fraud or Consumer Legal Remedies causes of action, you must decide in addition whether by clear and convincing evidence you find that there was oppression, malice and/or fraud in the conduct on which you base your finding of liability.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.