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.   

RV’s and The Lemon Law

RV’s (including motorhomes, travel trailers, fifth-wheels, campers, etc.) are known for providing years of enjoyable recreation to families across the United States.   Indeed, more than 9-million families in the United States own RV’s and, every year, over 40 million people in the United States go RV camping. However, for some, the purchase of an RV is followed by years of visits to the repair shop, unending repair costs, and escalating headaches.  The defects and problems that plague RV’s are as varied as the RV’s themselves: electrical issues, plumbing issues, leaks, engine and drivetrain issues, chassis issues, squeaks and rattles, issues with slide-outs, and countless other varieties of mechanical defects. Fortunately for California consumers, when an RV’s defects are covered by the manufacturer’s warranty, the Song-Beverly Consumer Warranty Act (commonly known as the “lemon law”) provides them with strong protections.  

The protections offered to RV owners offered under the Song-Beverly Act (like those offered to other vehicle owners) are co-extensive with the vehicle’s warranty.  In other words, the law covers defects that were covered by the original manufacturer’s warranty. (aftermarket service contracts, typically do not apply). The Song-Beverly Act provides strong protections to RV’s owners whose vehicles are not fixed after a reasonable number of repair attempts, suffer dangerous defects, or suffer an excessive number of days down.  

The seminal California case dealing with the scope of coverage afforded RV owners under the Song-Beverly Act is National R.V., Inc. v. Foreman, 34 Cal. App. 4th 1072, 1074, 40 Cal. Rptr. 2d 672, 673 (1995) (“National RV”).  In National RV, the court considered the issue of whether the coach portion of a motorhome is subject to the provisions of the Song–Beverly Consumer Warranty Act (Civ.Code,2 § 1790 et seq.). (Id.) In that case, the Foremans had purchased a 1990 Dolphin motorhome from 10,000 R.V. Sales for approximately $56,000. (Id.) The coach portion of the RV was warranted by National RV and the chassis was warranted by General Motors. (Id.) Within days of purchase, the RV began suffering from issues, including a dead battery. (Id.) From there, things grew worse and, altogether, the Foremans claimed 25 separate manufacturing defects with the RV.  (Id. at 1075)

National RV, supported by the Recreational Vehicle Industry Association, argued to the court that the Song-Beverly Act should not apply to the coach portion of the vehicle. (Id. at 1076). The court found that different portions of the RV were covered by different aspects of the Song-Beverly Act. (Id. at 1078). First, the court concluded that the chassis portion of the motorhome fell within the definition of a “new motor vehicle” and was therefore covered by the lemon law (Civil Code § 1793.2(d)(2)). (Id.) The court went on to consider whether the RV coach was considered a “consumer good” as defined by CC § 1791, subd. (a), “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables….”. (Id. at 1079). The court conducted a detailed analysis of the legislative history of the Song-Beverly Act and concluded that motorhome coaches “clearly are ‘consumer goods’ within the meaning of the Act and are subject to the general application provisions of the Act, such as section 1793.2, subdivision (d)(1).” (Id. at 1083).

In sum, National RV holds that, while different portions of the Song-Beverly Act apply to different parts of an RV, the RV as a whole is covered by the law.  The chassis portion of the RV (including the engine, transmission, and powertrain) are covered by Civil Code § 1793.2(d)(2), which is the same provision that applies to most motor vehicles.  The coach portion of the RV, meanwhile, is covered by subsection (d)(1), which applies to most consumer goods. Both subsections require a manufacturer to replace or repurchase a vehicle that cannot be conformed to warranty “after a reasonable number of repair attempts).”  (Notably, there’s a slight difference in the way damages are calculated under the two subsections). Nonetheless, the good news for RV vehicle owners is that their vehicle is covered!  

If you have a Recreational Vehicle that has suffered an excessive number of repair attempts, an excessive number of days down, or has unresolved repair issues, please call the lemon law experts at CCA, today, for a free consultation: (833) LEMON-FIRM.

Civil Penalties: Because Putting the Cookies Back in the Jar Isn’t Enough

By Michael H. Rosenstein, Esq.

If you’ve reviewed CCA’s Success Stories, you’ve undoubtedly noticed that our clients – by in large – recoup much more than what they paid for their cars in settlements and verdicts.  While many other lemon law firms settle for merely a refund or replacement of their clients’ vehicles, we hold automakers to a much higher standard.  California’s strongly “pro-consumer” Song-Beverly Act requires that manufacturers pay civil penalties when they willfully violate our State’s strong laws in order to punish their wrongdoing and discourage future bad behavior. CCA’s expert attorneys are familiar with the intricacies of these laws and, when enforcing them, work diligently to ensure that our clients receive maximum recoveries.  

In a nutshell, here’s how the law works: just as, when caught stealing, putting the cookies back in the jar isn’t enough; When an automaker willfully violates the Song-Beverly Act, merely recompensing the consumer oftentimes isn’t enough.  Like other areas of the law, the Song-Beverly Act mandates civil penalties for such willful conduct to punish the wrongdoing and discourage future bad conduct. CCA does not let manufacturers off with a slap on the wrist – we enforce California’s laws to their fullest extent allowed under the law.  

Civil Code section 1794 sets out the damages available to a buyer for a seller or manufacturer’s failure to comply with an obligation under the Act or under a consumer product warranty. Subdivision (c) (1794(c)) provides for a civil penalty of up to twice actual damages “[i]f the buyer establishes that the failure to comply was willful….” “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.” (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).  

Thus, the Song-Beverly Act allows consumers to recover substantially more than what they paid for their vehicles when a manufacturer willfully violates the Song-Beverly Act.  Such willful violations may occur in a variety of ways. Careful consumers should only consult with attorneys that: (1) are able to identify willful violations of the Song-Beverly Act; and (2) know how to enforce our State’s laws to recover civil penalties from the manufacturers.  

CCA’s attorneys have a strong track record of holding automakers responsible to the fullest extent of the law and obtaining superior recoveries for our clients.  If you’ve had problems getting a manufacturer to do the right thing or an attorney that needs help with a tough lemon law case, call us to learn more about our expert legal services: (833) LEMON-FIRM.  

How CCA Stays in Business Without Charging Its Clients

By Michael H. Rosenstein, Esq.

If you’ve spent some time on CCA’s website, you’ve probably already noticed that we don’t charge our clients for our services.  What is more, we forward all litigation costs on our clients’ behalves. You may be asking yourself, how does a law firm manage to stay in business without charging its clients?  The answer is found in the Song-Beverly Act and its crucial fee-shifting provisions.  

Under California’s “strongly pro-consumer” lemon law, the Song-Beverly Act, the vehicle manufacturers must pay a prevailing consumer’s attorneys’ fees, costs, and expenses.  As our Supreme Court has held that an award of attorney fees, expenses and costs is the “primary financial benefit” the Act offers to consumers. (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994). In short, the Song-Beverly Act mandates that a vehicle manufacturer must pay for your lawyer if they’ve sold you a lemon.  

The statutory basis for the Act’s fee-shifting provision is found in Civil Code § 1794(d), which states, “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees.”  As a general matter, attorney fee awards should be “fully compensatory” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133; Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 290); absent special circumstances rendering the award unjust, parties who qualify for a fee should recover compensation for “all the hours reasonably spent” in successfully litigating the action and obtaining their fee. (Ketchum, at p. 1133; Roth, at p. 290; Hensley v. Eckerhart (1983) 461 U.S. 424, 430 [counsel for prevailing parties should be paid for all time reasonably expended on a matter]; see also Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394; Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 447.)

The court summarized the methodology specifically relating to the Act in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462. The Act “‘requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer has the burden of “showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” (Goglin, at p. 470).  

The fee-shifting provisions of the Song-Beverly Act level the playing field between consumers and manufacturers by allowing consumers to retain exceptional lawyers to represent them, at the manufacturers’ expense.  As our Supreme Court described in, Murillo v. Fleetwood Enterprises, Inc., supra, 17 Cal.4th at p. 990; the provision for recovery of costs and attorney fees in the Act is an “important aspect of … consumer protection”; it removes the disincentive buyers might face when deciding whether to hire a lawyer, giving “‘injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible’”

In short, the Song-Beverly Act provides strong tools for consumers that have been saddled with defective or unfixable vehicles.  One of the most important tools is the Act’s fee-shifting provision, which allows consumers to retain exceptional legal counsel at no cost to them.  

If you’re a consumer suffering through repeat repairs or an attorney that needs assistance with the Song-Beverly Act, call us to learn how our expert legal team can assist you: (833) LEMON-FIRM.