Jiagbogu

Defendant Mercedes-Benz USA, Inc. (MBUSA) appeals from a judgment in favor of plaintiff Azubueze Jiagbogu in an action for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (Act) (Civ. Code, §§ 1790-1795.7). (All further statutory references are to the Civil Code unless otherwise specified.) MBUSA argues the trial court erred by not instructing on waiver of right to rescind, on statutory offsets for postrescission use of a product, on the presumption under section 1793.22, subdivision (b), and on other matters. MBUSA also argues the trial court should have awarded it an equitable offset for Jiagbogu’s use of his Mercedes-Benz car after he requested a replacement or refund from MBUSA.

We hold that the right of a vehicle buyer under the Song-Beverly Consumer Warranty Act to compel a manufacturer to reimburse the purchase price or replace the vehicle is distinct from a rescission; that the manufacturer is not entitled to an offset for use of the vehicle except where that remedy is authorized by the statute; and that the trial court should not instruct on the presumption that the manufacturer has had an adequate opportunity to correct…