Resources for Lawyers - California Consumer Attorneys, P.C.

CCA has created these pages for our friends practicing in other areas of the law who might need assistance better understanding California’s lemon law. If you have questions, you should feel free to call on our lawyers for help, anytime. Also, if your clients need assistance with a claim, you may confidently refer them to CCA knowing that they will receive the foremost legal representation and that you will receive a generous referral fee. As a matter of fact, over the years our attorneys have paid out over a million dollars in referral fees on lemon law cases. CCA would like to earn your trust and be your go-to resource for lemon law assistance and referrals.

California’s Song-Beverly Act

California’s lemon law is primarily based on the Song-Beverly Consumer Warranty Act, which can be found in Civil Code sections 1790 to 1795.8. Named for State Senators Alfred Song and William Beverly, the Song–Beverly Act was enacted in 1970. The Act regulates warranty terms, imposes service and repair obligations on manufacturers, distributors, and retailers who make express warranties, requires disclosure of specified information in express warranties, and broadens a buyer’s remedies to include costs, attorney’s fees, and civil penalties. The Act supplements, rather than supersedes, the provisions of the California Uniform Commercial Code. (Krieger v. Nick Alexander Imports, Inc., 234 Cal. App. 3d 205, 213, (Ct. App. 1991)). As our Supreme Court has noted, the Song-Beverly Act is “strongly pro-consumer” and that because it “is manifestly a remedial measure, intended for the protection of the consumer; it should be given a construction calculated to bring its benefits into action.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985).

Lawsuits brought under the Song-Beverly Act typically allege one or more of the following causes of action:

Breach of Express Warranty (Civ. Code § 1793.2(d));
Breach of the Implied Warranty of Merchantability (Civil Code § 1791.1(a));
Failure to Repair After a Reasonable Number of Opportunities – Presumption (1793.22(b)); and
Failure to Begin Repairs Within Reasonable Time or to Complete Repairs Within 30 Days (Civ. Code, § 1793.2(b)).

Breach of Express Warranty Under Section 1793.2(d).

To prove Breach of Express Warranty under 1793.2(d), a lemon law plaintiff must typically prove: (1) that the plaintiff bought/leased a motor vehicle manufactured/sold by/distributed by the defendant; (2) that the defendant gave plaintiff an express written warranty; (3) That the vehicle had a defect or defects that were covered by the warranty and that substantially impaired its use, value, or safety to a reasonable person in plaintiff’s situation; (4) that the plaintiff delivered the vehicle to the manufacturer’s authorized repair facility for repair of the defect or defects; (5) that the manufacturer or its authorized repair facility failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so; and (6) that the manufacturer did not promptly replace or buy back the vehicle. (See: CACI 3201).

Notably, it is not necessary for plaintiff to prove the cause of a defect in the vehicle. Also, it is noteworthy that “[T]he 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.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1050). In other words, the Act does not require consumers to request repurchase of their vehicles – the manufacturers have an affirmative duty to do so, even without the consumer asking. (Krotin v. Porsche Cars (1995) 38 Cal.App.4th 294, 301.)

Typically, the most controversial elements of a claim for Breach of Express Warranty are element numbers (3), requiring a substantially impairing defect, and (5) allowing the manufacturer a reasonable number of repair attempts. The factors considered in determining if a defect is substantially impairing are typically, “the nature of the defects; the cost and length of time required for repair; whether past repair attempts have been successful; the degree to which the goods can be used while repairs are attempted; inconvenience to buyer; and the availability and cost of alternative goods pending repair…” (Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 472, 478). In other words, a minor defect (for instance, the glovebox light malfunctioning) are insufficient for a vehicle to qualify.

Under Song-Beverly, in counting repair opportunities, each presentation counts – even if the manufacturer did not perform any work or did not duplicate the issue. (See: CACI 3202). Also, only a minimum of two opportunities to repair the vehicle as a whole are required. (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208).

The Song-Beverly Act is nuanced in its construction and application. If you have questions about the Act or your client’s situation, we are here to help. Also, if your clients need the assistance of a lemon law specialist, please feel free to refer them to CCA. We work with referring attorneys all over the State to make sure that their clients receive the highest possible recovery and that they receive a generous referral fee. Contact us anytime for assistance: (833) LEMON-FIRM or fill out the contact form on our website.
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Breach of the Implied Warranty of Merchantability Under Civil Code § 1791.1(a)

To prevail on a claim of Breach of Implied Warranty, a plaintiff must typically prove that the vehicle: (1) was not of the same quality as those generally acceptable in the trade; or (2) was not fit for the ordinary purposes for which the goods are used; or (3) did not measure up to the promises or facts stated on the container or label. (See: CACI 3201). Unlike an express warranty, the implied warranty of merchantability arises by operation of law and provides for a minimum level of quality. (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 26–27). Notably, our courts have rejected, “the notion that merely because a vehicle provides transportation from point A to point B, it necessarily does not violate the implied warranty of merchantability. A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose.” (Isip, supra at 27).

While there are time limits on the implied warranty of merchantability, it “may be breached by a latent defect undiscoverable at the time of sale. Indeed, ‘[u]ndisclosed latent defects . . . are the very evil that the implied warranty of merchantability was designed to remedy.’ In the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery.” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305).

Failure to Repair After a Reasonable Number of Opportunities – Presumption (1793.22(b))

In 1992, our State’s Legislature spun off some of the provisions of the Song-Beverly Act dealing specifically with motor vehicles into a new section, entitled the Tanner Consumer Protection Act Civil Code, in honor of retired Assemblywoman Sally Tanner. Section 1793.22, known as the Tanner Act, supplements the provisions of the Song-Beverly Act with certain more specific

provisions that apply to new vehicles within the first 18-month/18,000 miles of purchase.

Under the Tanner Consumer Protection Act, it must be presumed that a reasonable number of attempts have been made to conform a new motor vehicle to the applicable express warranties if, within 18 months from delivery to the buyer or 18,000 miles on the odometer of the vehicle, whichever occurs first, either:

the same nonconformity results in a condition that is likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has been subject to repair two or more times by the manufacturer or its agents, and the buyer or lessee has at least once directly notified the manufacturer of the need for the repair of the nonconformity;
the same nonconformity has been subject to repair four or more times by the manufacturer or its agents and the buyer or lessee has at least once directly notified the manufacturer of the need for the repair of the nonconformity; or
the vehicle is out of service by reason of repair of nonconformities by the manufacturer or its agents for a cumulative total of more than 30 calendar days since delivery of the vehicle to the buyer.

The 30-day limit may be extended only if repairs cannot be performed due to conditions beyond the control of the manufacturer or its agents. A buyer acting under option (1) or (2) is required to directly notify the manufacturer only if the manufacturer has clearly and conspicuously disclosed this requirement to the buyer in the warranty or the owner’s manual. The notification, if required, must be sent to the address, if any, specified clearly and conspicuously by the manufacturer in the warranty or owner’s manual. This presumption is a rebuttable presumption affecting the burden of proof, and it may be asserted by the buyer in any civil action, including an action in small claims court, or other formal or informal proceeding.

Failure to Begin Repairs Within Reasonable Time or to Complete Repairs Within 30 Days (Civ. Code, § 1793.2(b))

Section 1793.2(b) provides that, “Where… repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” (See: CACI 3205).

Remedies Available for Violations of the Song-Beverly Act

Civil Code section 1793.2(d)(2) provides that, “[i]f the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B).” In the case of restitution, “the manufacturer shall make restitution in an amount equal to the actual price paid or payable by the buyer, including any charges for transportation and manufacturer-installed options, but excluding nonmanufacturer items installed by a dealer or the buyer, and including any collateral charges such as sales or use tax, license fees, registration fees, and other official fees.” (Civil Code § 1793.2(d)(2)(B)).

In addition to restitution, a vehicle owner is entitled to recoup incidental and consequential damages incurred as a result of the manufacturer’s breach of the Song-Beverly Act. (Civil Code § 1794(b)). For the purposes of the Song-Beverly Act, incidental and consequential damages generally include those costs incurred by the vehicle owner as a result of the manufacturer’s breach, such as costs for a rental vehicle, costs for third-party repairs, etc.

Civil Penalties Under the Song-Beverly Act

An automobile buyer may also obtain a penalty of up to two times actual damages without a showing of willfulness. (See Civ. Code, § 1794(c).) “In regard to the willful requirement of Civil Code section 1794, subdivision (c), a civil penalty may be awarded if the jury determines that the manufacturer knew of its obligations but intentionally declined to fulfill them. There is no requirement of blame, malice or moral delinquency. However, ‘… a violation is not willful if the defendant’s failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present.’ ” (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249–1250.

“[T]he penalty under section 1794(c), like other civil penalties, is imposed as punishment or deterrence of the defendant, rather than to compensate the plaintiff. In this, it is akin to punitive damages. (Kwan v. Mercedes Benz of N. Am. (1994) 23 Cal.App.4th 174, 184–185, internal citation omitted.)