TheLemonFirm.com discusses who has the affirmative duty in lemon law cases.

The Song-Beverly Act: Who Has the Affirmative Duty?

By Jonathan Cagliata

You prepare for work one morning only to find that, as you rush to begin your daily commute, your car won’t start. It may have started and then instantly sputtered out, it may have begun to move but lost power, or it may not have reacted to your presence in any way. There may be flashing warning lights and alarms, or the car may be dead quiet. In that moment, your first thought may not be an analytical troubleshooting of whatever mechanical or technical issues come to mind. In fact, your first thought may be that, while you don’t understand what is happening, you know you need to get to work on time, and that your vehicle has failed you.

How many consumers know exactly how the goods they purchase actually work? Most consumers lack a complete mechanical or technical understanding of how the things they buy work: consumers simply expect that products will work as intended. The same can certainly be said for motor vehicles – as an average consumer, you might simply expect that a new motor vehicle will drive off the lot defect-free. All too often, this turns out not to be the case.

The legislators behind California’s robust lemon law, the Song-Beverly Consumer Warranty Act, wisely contemplated the disparity of knowledge between ordinary consumers on the one hand, and motor vehicle manufacturers and their agents (such as authorized repair facilities, technical support lines, etc.) on the other. This disparity plays a role in various sections of the Song-Beverly Act: in particular, this article addresses the failure to repurchase/replace provision of California Civil Code, section 1793.2, subsection (d), and the civil penalty provision of California Civil Code, section 1794, subsection (c) for willful violation of the Song-Beverly Act

Simply put, a consumer’s only “duty” under the Act is to bring the vehicle to the manufacturer and/or its agents, to allow them a reasonable opportunity to repair the underlying problem: the Song-Beverly Act does not predicate recovery on anything beyond a consumer’s presentation of the vehicle for repairs. (The Act “does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties-other than, of course, permitting the manufacturer a reasonable opportunity to repair the vehicle,” even though, “as a practical matter,” most consumers likely will make such a request. Krotin v. Porsche Cars N. Am., Inc., 38 Cal. App. 4th 294, 302-303 (1995); see also id. at 303 (“As it stands now, however, the manufacturer has an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts, and the buyer need not reject or revoke acceptance of the vehicle at any time. The buyer need only provide the manufacturer with a reasonable opportunity to fix the vehicle.”); Lukather v. Gen. Motors, LLC, 181 Cal. App. 4th 1041, 1050 (2010) (citing Krotin and rejecting the defendant’s contention that plaintiff “himself had a duty to act promptly under the Act”). 

Thus, the Act holds manufacturers and their agents to a stricter standard. These entities are expected to know their legal obligations under the Song-Beverly Act. Furthermore, a decision not to repurchase or replace potentially defective vehicles is assessed under the Act as if the deciding entities utilized all reasonably available information germane to that decision. For example, a manufacturer cannot claim ignorance of a particular repair visit when a defect manifested – if the visit occurred, the manufacturer is presumed to know that it occurred, what the result of the visit was, and what decision was called for by ‘all reasonably available information germane to’ the problems presented.

In the seminal California case Lukather v. General Motors (2010) 181 Cal.App.4th 1041, the court was tasked with determining whether the evidence was sufficient to support the trial court’s findings that the manufacturer willfully violated the Song-Beverly Act. The court noted: “the Act does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties—other than, of course, permitting the manufacturer a reasonable opportunity to repair the vehicle.”  (Id. at 1050.) 

The court in, Krotin v. Porsche Cars (1995) 38 Cal.App.4th 294, stated that “the manufacturer has an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts, and the buyer need not reject or revoke acceptance of the vehicle at any time. The buyer need only provide the manufacturer with a reasonable opportunity to fix the vehicle.”

California consumers rely on manufacturers and their agents to assess defects and nonconformities in their vehicles. The Song-Beverly Act makes clear that manufacturers and their agents are expected to undertake reasonable repair attempts. Importantly, manufacturers and their agents are further expected to make whatever conclusions, and to take whatever further steps, are reasonable in light of discoveries made at the repair presentation. So, the Song-Beverly Act reinforces the notion that California protects its consumers – in this case, California consumers can proceed with the sense that consumer goods will work as intended; that experienced entities are required to undertake reasonable opportunities to inspect and repair the goods when they don’t work as intended; and that these entities will be treated as if all information reasonably available to them was utilized when declining to provide Song-Beverly relief, whether or not the particular entity  actually utilized that information.

While California clearly places the affirmative duty on the manufacturer to repurchase defective vehicles, all too often manufacturers completely disregard this affirmative duty.  If your vehicle has been subject to excessive repairs or too many days in the shop, call the experts at CCA for a free consultation: (833) LEMON-FIRM.