Category: Lemon Law

TheLemonFirm.com discusses a series of new vehicle warranties.

The New-Vehicle Warranties

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By Brian T. Murray

Aside from the new car smell, one of the best advantages of purchasing a new vehicle is knowing that your new car will be covered by the manufacturer’s warranty.  Yet, consumers don’t often appreciate that their vehicles are covered by multiple, sometimes overlapping warranties.  

For the majority of automobile manufacturers, the new-vehicle warranty includes a basic bumper-to-bumper warranty and a powertrain warranty.  The basic or bumper-to-bumper warranty usually covers the cost of repairs for defects in materials or workmanship to all components for a given time and mileage.  Currently, Volkswagen offers one of the industry’s best basic warranties that lasts for 6-years or 72,000-miles, whichever occurs first.

Most automobile manufacturers also offer a powertrain warranty that applies to major mechanical components like the engine, transmission and axles.  Several manufacturers including Kia, Hyundai, and Mitsubishi offer a 10-year or 100,000-mile powertrain warranty.  However, make sure to read the fine print because in some cases, the 10-year or 100,000-mile powertrain warranty is only available to the original owner of the vehicle.  Subsequent owners are stuck with much less coverage.  

In addition to the manufacturer’s warranty, vehicle emissions systems are covered by warranties that statute.  Among other parts, the Federal Emissions Warranty can cover emissions-related component repairs for vehicles up to 8 years old or up to 80,000 miles, whichever comes first. The Federal Emissions Warranty covers the repair/replacement of many emission-related components. 

Components typically covered under the 8/80 Federal Emission Warranty include emission parts that must perform for an extended period of time without performance issues. These components include a vehicle’s Catalytic Converter, Transmission Control Module, and Powertrain Control Module and/or Engine Control Unit (PCM or ECU).

The State of California has its own emissions component coverage for 7-years or 70,000-miles. The California Emissions Warranty covers many more smog parts than the Federal Emissions Warranty. There are also certain year, make and model vehicles that may have emission parts covered under the California Warranty that go above and beyond the normal parts coverage for 8/80.

Historically, new vehicle warranties were not always so comprehensive.  At the turn of the 20th century, some manufacturers including Oldsmobile offered no warranty at all.  By the 1920s, it was not uncommon to see a 90-day warranty sold with new vehicles.  

Despite the introduction of longer warranties in the 1960s, automobile quality had deteriorated so badly that the U.S. Federal Trade Commission launched an investigation into the growing litany of consumer complaints. In 1975, Congress enacted the Magnuson–Moss Warranty Act in response to merchants’ widespread misuse of express warranties and disclaimers. The purpose of the act was to make warranties on consumer products more readily understood and enforceable.  

The Magnuson–Moss Warranty Act is still in effect today to protect consumers from deceptive warranty practices in connection with all consumer goods, including automobiles.  Although manufacturers of consumer goods are not required to provide written warranties, if a written warranty is provided, it must comply with the Magnuson-Moss Act.

In addition to the Magnuson-Moss Warranty Act, California Consumers enjoy the benefit of the Song-Beverly Consumer Warranty Act.  The Song-Beverly Act is one of the strongest consumer protection acts in the nation and provides broad protections to vehicle owners when their vehicle manufacturers fail to live up to the promises made in their warranties.  

If your vehicle has had excessive warranty issues or spent too many days in the shop, please give the lemon law experts at CCA at call today for a free consultation: (833) LEMON-FIRM. 

Are Vehicle Service Records Admissible Evidence? Hint: California Requires Dealerships To Keep A Paper Trail.

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By Erik K. Schmitt, Esq.

Every time a person brings in a vehicle to a dealership to repair a problem, a service record (or, repair order) should be created to document the problem and any steps taken by the dealership to diagnose and repair it. Not only are these records important to document the history of the vehicle, but they are mandated by California law. (Cal. Bus. & Prof. Code § 9884.9.) And while it seems like a no-brainer that repair orders are proper, admissible evidence to prove a car is a lemon, auto manufacturers often try to argue that the documents should not be admitted in court because they contain statements that violate the evidentiary rule against hearsay.

The rule against “hearsay” is one of the first things every first-year law student learns on the road to becoming an attorney. Generally speaking, the hearsay rule states that (with a handful of exceptions) any out-of-court statement offered for its truth cannot be used as evidence to prove a disputed fact. The idea behind excluding hearsay is that the statement, and the person making the statement (the declarant), aren’t subject to scrutiny, such as by cross examination by an attorney or credibility evaluation by a jury. Accordingly, the law deems these kinds of statements inherently unreliable.

However, despite manufacturers’ attempts to hide relevant information from a jury, there are several exceptions to the hearsay rule that allow repair orders (and the customer’s complaints) to be admitted into evidence. First, the documents themselves are reliable business records that are regularly created in the dealership’s normal course of business. Second, the complaints aren’t actually being used to prove the vehicle was a lemon, but that the customer put the manufacturer on notice that the vehicle had problems covered by the warranty.

In the case of Raul Ortega v. BMW of North America, LLC, (CACD Case No. 2:18-cv-06637), CCA attorneys Sepehr Daghighian and Erik K. Schmitt successfully defended against BMW’s Motion for Directed Verdict based on this exact proposition. After Messrs. Daghighian and Schmitt won the Ortega trial on behalf of their clients, BMW argued for a directed verdict on the basis that the repair orders contained inadmissible hearsay because the customer’s complaints were being offered to prove the vehicle had irreparable defects. CCA’s attorneys countered that the repair orders were reliable business records, and that the Ortegas weren’t using those statements to prove the vehicle was defective; only that he was notifying BMW that the vehicle might have warrantable defects, and if so, give it the chance to repair the problems.

The Honorable R. Gary Klausner, a federal judge sitting in the Central District of California, agreed with the Ortegas. Judge Klausner noted that, not only did BMW acknowledge that “the repair orders themselves are excepted from the rule against hearsay since they qualify as business records,” but the complaints “were offered primarily to prove that [BMW] had been given notice of [Mr. Ortega’s] concerns on numerous occasions and that [it] had numerous opportunities to repair those concerns. Accordingly, the statements are not hearsay and should not have been excluded.” Messrs. Daghighian Schmitt’s unanimous jury verdict that: (i) Mr. Ortega’s vehicle was a lemon, (ii) that BMW had willfully violated the Song-Beverly Act, and (iii) that significant civil penalties should be awarded against BMW was affirmed by Hon. J. Klausner.  Judgment was entered in favor of the Ortegas and against BMW in the amount of $120,669.00, exclusive of attorney’s fees and costs.

If you’re having problems with your vehicle that are covered under warranty, remember to always bring it to the manufacturer’s dealership, tell them your concerns, and make sure that they are fully documented in the repair orders. And if you end up in the unfortunate position of having to bring a lemon law claim, these records can be used by a CCA attorney to show that your vehicle was defective. For a free consultation, contact us at (833) LEMON-FIRM.

California Consumer Attorneys, PC discusses the history of lemon law in California.

A Brief History of Lemons

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By Michael H. Rosenstein, Esq.

California’s lemon law, the Song-Beverly Consumer Warranty Protection Act, was an outgrowth of investigations and public hearings by the California Senate Business and Professions Committee in November 1969. The committee concluded that aside from automobile repairs, the single largest category of consumer complaints was warranty problems. In addition to warranties being confusing and misleading, consumers complained that manufacturers and retailers rarely accepted responsibility for making repairs under their warranties. Unsurprisingly, the largest number of warranty complaints concerned automobile dealers and manufacturers.

The committee inquiry convinced California State Assembly Senator Alfred Song that consumers “need legal protection” (As the leading proponent and coauthor of the Song-Beverly Act (Civil Code §§ 1790 et seq.), Senator Song specifically indicated that the purpose of creating a consumer warranty protection law was to establish “legal weapons” for consumers.  If manufacturers wanted the advertising and marketing benefits of issuing warranties at the time of sale, manufacturers needed to eliminate the practice of making warranties “little more than sales gimmicks.”  

The proposed consumer protection act set forth rights, responsibilities, and the legal relationship of buyers and sellers of consumer goods in California. Manufacturers or retailers issuing express warranties for consumer goods sold in California that were unable to service or repair consumer goods to conform to the applicable express warranties were required to either replace the goods, reimburse buyers, or face potential lawsuits. The Act initially proposed that if the buyer established that a retailer or manufacturer’s failure to comply was willful, any subsequent court judgment could include a civil penalty up to three times the actual damages plus attorneys’ fees. The final bill codified into law, however, reduced recovery for civil penalties from three times actual damages to two. It also indicated that manufacturers and retailers would only be liable under the Act if they had been given a “reasonable number of attempts” to fix defects (Civil Code § 1793.2). 

Senator Song’s achievement was a remarkable one because the Song-Beverly Act was the first consumer warranty law–state or federal–passed in the country. At its inception, the Song-Beverly Act’s purpose was to arm consumers with powerful legal weapons attainable through the court system. However, all involved realized that ambiguities in the law could create unforeseen challenges. Even Senator Song noted that “like most new pieces of legislation, [the Act had] its share of loopholes and ambiguities” In particular, the Act did not define what constituted a reasonable number of attempts, willful violation, or a civil penalty. A

Since Senator’s Song’s remarkable achievement, the Song-Beverly Act has been expanded and explained through new legislation and decades of court decisions.  Today, the Song-Beverly Act is found in California Civil Codes 1790 – 1795.8.  

Fortunately for California consumers, the Song-Beverly Act remains one of the most robust consumer protection statutes in the nation.  The lawyers at CCA have the great privilege of practicing Song-Beverly litigation every day. To learn more about how our State’s lemon law can be put to work for you, please call us: (833) LEMON-FIRM.

California Consumer Attorneys, PC discusses why Silvio v. Ford Motor Co. isn't as straightforward as you'd think.

What Silvio Does and Does Not Say

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By Michael H. Rosenstein, Esq.

The court’s seemingly straightforward holding in Silvio v. Ford Motor Co., 109 Cal. App. 4th 1205, 1207 (2003) (“Silvio”) is regularly misconstrued, misquoted, and misinterpreted to stand for things that it simply does not say.  Automakers like to stretch, squeeze, and shoehorn Silvio into an interpretation that serves their defense of a Song-Beverly Act claim.  However, Silvio itself simply does not say what the automakers oftentimes claim that it does.  What is more, when read in light of other key lemon law precedents, it is very clear that Silvio does not support the automakers’ erroneous interpretation.  

The facts of Silvio begin with Frank and Charlotte Silvio purchase of a Ford Explorer from Board Ford on November 17, 1998. (Silvio  at 1207). On November 29, 1998, as Frank Silvio drove into his garage, the Explorer suddenly and rapidly accelerated, although Silvio did nothing to cause the acceleration. (Id.) On December 28, after picking the Explorer up from the body shop, Frank Silvio drove the Explorer to Board Ford. (Id.) Board Ford representatives drove the Explorer and conducted tests, and told Silvio that they could not find anything wrong with the vehicle, but that the problem was caused by thick after-market floor mats he had put in the Explorer. (Id.)  There was another episode of sudden acceleration on July 24, 2000. (Id.) The Silvios’ son contacted Board Ford, told them about the incident, and said that appellants wanted Ford to buy back the Explorer and did not want it fixed. (Id.) Ford refused to buy the Explorer from the Silvios. The evidence was thus that Ford Motor Company was given only one opportunity to repair the Explorer.  

The holding in Silvio is very straightforward: the court of appeal found that that the Silvios could not exercise their rights under the Song-Beverly Act because Ford had been given only one opportunity to fix the vehicle.  As the court explained, “[t]he statute requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle “after a reasonable number of attempts.” “Attempts” is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.” (Silvio at 1208, emphasis added).  Thus, Silvio’s holding is clear: manufacturers must be allowed at least two or more attempts to conform a vehicle to warranty.  

Automakers oftentimes attempt to bend Silvio to argue that they should be allowed more than one attempt to fix each defect in a vehicle, more than one attempt for each part that breaks in a vehicle, or that defects which are fixed on the first attempt do not even count towards a Song-Beverly Claim.  All three of these arguments are bogus and stem from a misreading of Silvio.  

The unique facts of Silvio apply to the rare case where a consumer’s vehicle, like the Silvios’ vehicle, is presented only one time for repair.  The language of the statute, Civil Code 1793.2(d)(2) is clear: “If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle… to conform to the applicable express warranties after a reasonable number of attempts…” the manufacturer must replace/repurchase the vehicle. It must be noted that, in the statute, the language “after a reasonable number of repair attempts” applies to the “vehicle” as a whole – not to each defect in the vehicle.  No California case has ever held otherwise.  In fact, each occasion that an opportunity for repairs is provided counts as an attempt, even if no repairs are actually undertaken. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103-1104.)

FCA (manufacturer of Fiat, Chrysler, Dodge, Ram, Jeep, Maserati, and other vehicles) recently attempted to misinterpret Silvio in the matter Atienza v. FCA US LLC, No. 3:17-CV-00977-WHO, 2018 WL 6460431, at *3 (N.D. Cal. Dec. 10, 2018).  FCA argued that the plaintiff’s case should be thrown out because he, “never presented the same defect to an authorized repair facility more than once as required under the ‘attempts’ language of the statute, and all issues that he did present were resolved.”  The United States District Court, Northern District of California, however, correctly read Silvio and shot FCA’s arguments down, stating: “Silvio is not instructive for two reasons. First, I cannot agree with the court’s statutory interpretation analysis. Given the structure of the phrase ‘a reasonable number of X,’ the object of the preposition ‘of’ must necessarily be plural. One person might think one is a reasonable number of children, while another might find five a reasonable number. Children may be plural, but one is not. Second, as [plaintiff] points out, the plaintiffs in Silvio brought in the entire vehicle for repair only once. See Oppo. 8. Accordingly, the court did not hold that a plaintiff must present the same defect more than once.  FCA has produced evidence that could lead a jury to conclude that it did not have a reasonable number of opportunities to cure the defects or that it successfully repaired all defects.”  (Id.).  

In 1964, the band The Animals famously sang, “Please Don’t Let Me Be Misunderstood!”  55-years later, Silvio should not be misunderstood either.  Silvio does not say that manufacturers get two chances to fix each defect or each part on a car.  Allowing such leeway would be ridiculous because modern cars have some 30,000 parts. Silvio also doesn’t say that defects, which are fixed on the first try, do not count towards a Song-Beverly claim.  What Silvio does hold is that vehicle manufacturers are allowed more than one attempt to fix the vehicle as a whole.  Nothing more.  

Our State’s lemon laws are nuanced and manufacturers go out of their way to bend them in their favor.  If you need help with a tricky lemon law claim, call the experts at CCA: (833) LEMON-FIRM.

California Consumer Attorneys, PC discusses what is considered a California lemon.

Is My Car a California Lemon?

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While we’ve all had mechanical and electronic devices with defects that have driven us crazy, defects that affect our cars are often the most intrusive. It is never good news to hear that your car will have to be “in the shop” again for an extended period. When you receive such news about a new, newly purchased or leased car (still under warranty), you will probably begin wondering if your car is a lemon. If you suspect it is, the first thing you should do is get in touch with a lemon law attorney with a reputation for knowledge and integrity. The last thing you need when you are already feeling taken advantage of is a lemon law attorney you can’t trust.

California Lemon Laws

Though state lemon laws vary a bit state to state, in California, typically for a vehicle to be considered a lemon:

  1. Your car must have a “substantial defect or defects;”
  2. The defect or defects must be covered by the original manufacturer’s warranty;
  3. That defect must affect the use, value or safety of the vehicle
  4. Your car must have gone through a reasonable number of repair attempts without success

Failures of the major vehicle systems – brakes, engine, transmissions, vehicle computers, etc. – typically qualify as substantial impairments.  If, on the other hand, your upholstery has a worn spot or your glove box doesn’t open unless you bang it—these defects typically do not qualify as “substantial.” 

Stuck with a Lemon? The Right Lemon Law Attorney Will Help You Make Lemonade

Don’t waste any more time feeling frustrated and helpless. With a capable lemon law attorney at your side, you will have the best chance of receiving the refund or replacement vehicle you deserve.

California Consumer Attorneys, PC discusses who can help your car pass the California lemon law test.

Who Can Help My Car Pass the California Lemon Law Test?

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As frustrating as it is to have an ongoing problem with your new or newly purchased or leased automobile, it is doubly frustrating to find that—in spite of all your inconvenience and displeasure—you’ve been told your car doesn’t qualify as a “lemon.” Just when you thought that the law was finally on your side in a consumer dispute, you have been told that all your time and bother doesn’t count and you will have to fend for yourself. When you’re feeling down and out, before you begin sulking about the way large companies always have the advantage and individuals are always the underdog—call a talented lemon law attorney. 

Remember To Take It From Whom It Comes

In order to get professional advice, you have to go to a professional. The fact that your best friend, your father-in-law, your old mechanic, or even your car dealer or manufacturer has told you that you don’t have grounds to pursue a lemon law case, don’t take their word for it. 

Instead, consult with someone who earns a living by winning lemon law cases in California. If you think about it, it’s easy to see why your loved ones, who are not likely to be extremely well-informed in the field of lemon law might be mistaken. And the car dealer and manufacturer have every reason to convince you to back away from a lemon law claim or a lawsuit. They’re looking out for their bottom line.

The Truth of the Matter

Once you consult with a lemon law attorney, you will uncover the facts that lead to, or away from, a diagnosis of a “lemon.” More than that, you will come to understand that a high-quality lawyer in the field knows precisely which tactics will work to persuade the manufacturer to negotiate rather than fight a battle before a jury that is likely to be inclined to side with you, the consumer. 

Real Reasons Your Car May Not Be Considered a Lemon

There are times, of course, when your vehicle, though it’s given you a great deal of trouble, will not be legally categorized as a lemon. These disqualifying criteria are: 

  1. The defect is considered insubstantial, not tied to the vehicle’s use, value, or safety (e.g. the radio knob periodically comes off; the glove box has to be banged shut)
  2. The defect occurred due to your own, or a passenger’s negligence (e.g. your car stalled because you neglected to have the oil checked and it was very low)
  3. The defect is the result of an accident, theft, or vandalism (e.g. your car is pulling to the right after you’ve had a fender bender)
  4. The defect is the result of an unauthorized repair of the vehicle 

Why a Lemon Law Attorney Gives You an Edge

Some of the criteria for determining whether your car is a lemon are open to interpretation. Suppose, for example, that well before your car stalled in traffic, creating a dangerous situation, you had complained of a leak onto your garage floor, but the dealer’s service team checked the car twice and said it was fine. Or suppose that weeks before your minor accident you had your car checked because you felt it was pulling to the right and, though the dealership mechanics assured you that the steering was fine, that defect was responsible for your fender bender? 

A competent lemon law attorney will fight aggressively to support your version of events. Your lemon lawyer will collect and examine records from the dealer verifying your claims and argue your case before an arbitrator or, if necessary, in a court of law. Take advantage of the experience, technical knowledge, access to experts, well-practiced strategies and legal acumen of a lemon law attorney. You won’t pay any attorneys’ fees until you win replacement or repurchase of your vehicle.

California Consumer Attorneys, P.C. discusses how these two cases relate to manufacturers' affirmative duty.

Krotin, Lukather, and the Manufacturers’ Affirmative Duty

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By Michael H. Rosenstein, Esq.

The rulings in Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 45 Cal.Rptr.2d 10 (“Krotin”) and Lukather v. General Motors, LLC, (2010) 181 Cal. App. 4th 1041, 1051, 104 Cal.Rptr.3d 853 (“Lukather”) are twin pillars of consumer protection under California’s Song-Beverly Act.  While the decisions concern two very different vehicles – the former a 1987 Porsche 944 and the latter a 2005 Cadillac – they both reach the same important conclusion: that the Song-Beverly Act places the “affirmative duty” to repurchase defective vehicles squarely on the manufacturers’ shoulders.  

Mikhail and Maya Krotin leased their 1987 Porsche 944 in October of 1987 and, right at the outset, began experiencing problems driving the car in the mornings after a cold start. (Krotin at 298). During the first four months of ownership, the Krotins brought their Porsche into the shop four times for repair of the problem. (Id.) The Krotins proceeded to take the vehicle to 3 different Porsche dealerships for repair of the cold-start problem and a wide array of other issues; to no avail. (Id.) Meanwhile, they called Porsche Cars North America in May of 1988 to request a “buyback” of their beleaguered 944. (Id.) Porsche refused. In January of 1991, the Krotins wrote Porsche headquarters, indicating their vehicle was a lemon and requesting a repurchase. (Id. at 299). Porsche refused, again.  A month later, the Krotins wrote Porsche Financial Services advising that they were revoking acceptance of the vehicle and advising that they would no longer make payments on the now parked 944. (Id.) Eventually, Porsche repossessed the car and, then, added insult to injury by suing the Krotins.

Paul Lukather’s purchase of a 2005 Cadillac from Cadillac of Whitter in April of 2005 followed a similarly disastrous fact pattern.  Right out of the gate, Mr. Lukather’s Cadillac exhibited an intermittent but recurring malfunction in the electronic stability control system. (Lukather at 1043). Mr. Lukather brought the vehicle to the dealership numerous times for the ESC system issue, braking issues, and other issues.  While GM admitted at trial that the vehicle qualified as a lemon, it contended that Mr. Lukather did not do enough to trigger its obligation to repurchase or replace the vehicle.  

The Courts in both Krotin and Lukather reached the same important conclusion: under California’s Song-Beverly Act, the consumer does not need to take any steps other than to provide the manufacturer with the opportunity to repair the vehicle. (Krotin at 303; Lukather 1050).  Rather, the Song-Beverly Act imposes on manufacturers, “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 at 1050, citing Krotin at 303). Although not expressly stated, this essential conclusion is embodied in the CACI jury instruction for Failure to Repair After a Reasonable Number of Repair Attempts (CACI 3201), which imposes no obligation on consumers other than to take in their vehicles for service. (See: CACI 3201).  

In Krotin, the automobile manufacturers as amici curiae argued, not so fast! How could we possibly know if our vehicles are lemons after sell them?  We’re not “clairvoyant!”  The court of appeal decisively smacked this argument down, stating: “An automobile manufacturer need not read minds to determine which vehicles are defective; it need only read its dealers’ service records… Computerized recordkeeping at dealership service departments could easily facilitate this task, even without any direct contact from the consumer to the manufacturer or any request for replacement or reimbursement to the dealership. It is thus apparent that a manufacturer need not be ‘clairvoyant’; it need only demonstrate more initiative in honoring warranties.”  (Krotin at 303).  

In conclusion, Krotin and Lukather both require that manufacturers repurchase defective and unfixable vehicles – even without the consumer asking.  Although 15-years apart, both courts interpreted the Song-Beverly Act the same way: to require that the vehicle manufacturers monitor their computerized warranty records and voluntarily repurchase lemons.  

Theoretically, this legal obligation should put lemon law lawyers like us out of business, right?  Wrong!  In reality, in this writer’s experience, in spite of Krotin and Lukather, no manufacturer actually follows the law by monitoring its computerized warranty records to voluntarily repurchase defective vehicles.  While these important decisions provide substantial ammunition to California consumers, in reality, manufacturers simply pretend like they don’t exist.  

If you have a vehicle that you believe is a lemon, don’t hold your breath waiting for the manufacturer to do the right thing, call the experts at CCA today for expert assistance: (833) LEMON-FIRM. 

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