Lemon Law for California

Sometimes a manufacturer makes a design or production mistake on a motor vehicle. If dealers report a number of complaints about a certain part or vehicle, the manufacturer may allow dealers to repair the problem at no cost to you even if the warranty has expired. A service bulletin notifies the dealer of the problem and how to resolve it. Because these free repairs are not publicized, they are called “secret warranties.” The National Highway Traffic Safety Administration (www.nhtsa.dot.gov) maintains a database of service bulletins filed by manufacturers.

Many vehicle problems can be identified and repaired by your franchised dealership right from the start, or by the 2nd visit. Sometimes a visit with the Service Manager at the 2nd visit can result in a potential repeated problem being resolved right away. Other times vehicles have a chronic problem (or problems) that despite repeated visits to the dealership (not to mention countless days in the shop) turn out to be “lemons.” It’s when despite your best efforts the vehicle just turns out to be chronically defective, and needs to be repurchased or replaced. 

Sometimes the old adage “what you do say can hurt you” can be an accurate statement when it comes to Lemon Law claim.  Consumers are not generally versed in law, civil litigation, speaking with automobile manufacturers or their “customer assistance centers,” or Lemon Laws. The consumer should consider getting professional advice from an experienced Lemon Law attorney that knows and understands the Lemon Law.

Manufacturers have for years been putting out false propaganda that a consumer does not have a lemon law claim unless he or she has four repair attempts for the same defect within the first 18,000 miles. This is simply incorrect. It is an effort by car manufacturers to discourage otherwise worthy consumers from pursuing claims for defective products.

The correct standard is whether the consumer has given the manufacturer a reasonable opportunity to repair the vehicle within the warranty period. A reasonable opportunity usually involves more than one repair attempt; I have seen few cases succeed with only two repair attempts, and juries and judges generally expect at least three repair attempts. “Within the warranty period” means exactly what it says: if your car has a drive train warranty for 70,000 miles and the drive train is defective, then you have 70,000 miles to have the manufacturer make the necessary repairs effectively. If they don’t fix the drive train, and if you have given the manufacturer a reasonable number of repair attempts, then you have a lemon law claim.

Also, if the manufacturer cannot fix the problem within the warranty period, and you notify the manufacturer or its dealership representative in writing within 60 days after the last failure to repair the problem, then the warranty does not expire as to that defect. Thus, if the consumer above had notified the manufacturer of its failure to repair the vehicle within 60 days after the last unsuccessful repair attempt, then the warranty does not expire as to that drive train defect.

There is something called the “lemon law presumption“, and this is the only part of the lemon law where there is a requirement of 4 repair attempts within the first 18,000 miles. This is a legal presumption affecting the burden of proof in a lemon law lawsuit. Normally, the plaintiff bears the burden of proving that he or she has given the manufacturer a reasonable number of repair attempts to fix the vehicle. If, however, the consumer proves that he or she brought the vehicle in for repairs for the same defect four times within the first 18,000 miles, or if he or she proves that the vehicle was out of service 30 or more days within the first 18,000 miles, then the law shifts the burden of proof to the manufacturer to prove that it was not given a reasonable opportunity to fix the vehicle.

As a practical matter, plenty of lemon law cases go forward without the lemon law presumption. The only requirement upon the consumer is that he or she give the manufacturer a reasonable number of repair attempts within the warranty period. If this is done, and the vehicle still is not repaired, the consumer has a lemon law case.

Your question relates to fraud. You should contact your local Department of Motor Vehicles, or report the matter to the police and/or the district attorney’s office. Of course, you can also bring a civil court action against the seller if you can adequately prove fraud.

Depending on the state you’re in, the decision may or may not be binding on the consumer while it’s binding on the manufacturer. On the surface, this may appear to be a good deal for the consumer. In reality, however, there is a major fly in this ointment: a manufacturer ordered to take corrective or replacement action because of an arbitration hearing is compelled to do so. But if the manufacturer prevails and the consumer loses, the manufacturer need do nothing more.

If your state laws give you a right to take legal action after an arbitration hearing because the arbitration isn’t binding on the consumer, the fact that the arbitration ruling went against the consumer may be admissible as evidence in any future legal proceeding. Should you later decide to sue the manufacturer, the results of this unfavorable decision will certainly be used against you, and may be highly damaging to your case.

Lemon laws don’t work on the basis of being “in effect.” You can avail yourself of the lemon laws of your state so long as you qualify for the statutory requirements, which vary from state to state.

Obviously, it won’t work to drive a car with a manufacturing defect for an excessive period of time without complaining about it and then decide after such a long time that you want to have your money returned. So long as you diligently pursue attempting to have the defect repaired by an authorized dealer, and the manufacturer cannot make the repair, then you have a right to demand compliance with the lemon laws. Contact a local attorney familiar with the lemon laws of your state to find out whether your situation qualifies.

You cannot sue under the lemon laws, because typically the lemon laws are meant to return a consumer to the condition that he or she was in before buying the vehicle containing manufacturing defects. In your situation, you seem to be describing a matter of a failure to disclose information, or misrepresentation. Those are entirely different legal bases. Call your local county bar association for a referral to attorney who can advise you on this matter. Remember, however, that it will be the local dealer’s word against yours, and you may have a difficult time proving your case if there isn’t anything in writing.

Automobile lemon laws typically require the consumer to notify the dealer and manufacturer of a claim. The laws also require you to use non-court procedures such as arbitration to resolve disputes before going to court. Remedies available to consumers under these laws vary from state to state, but may include:

• Returning the car for a refund of the purchase price (less some amount for the use of the car before it is returned)

• A replacement car, or

• Payment for excessive repairs

At the federal level, the Magnuson-Moss Warranty Act applies. Each state has established “lemon law” statutes, generally enforced through the consumer protection division of the Attorney General’s office.

When dealing with lemon laws, the basic questions that an Attorney needs to have answered are:

• Whether you bought the vehicle new or used

• When it was purchased

• The year, model, and manufacturer

• The defect(s) that you are complaining of

• How many repair attempts you’ve attempted on the vehicle

Preventive maintenance (PM) consists of scheduled servicing, inspections, and vehicle repairs to prevent potential problems and maximize vehicle availability. Preventive maintenance is used to proactively avoid or reduce vehicle breakdowns and is based on time, mileage, engine hours, or gallons of fuel used. Preventive maintenance actions include vehicle inspection, lubrication, adjustment, cleaning, testing, repair, and/or worn parts replacement. 

To maximize the availability of vehicles, PM services must be performed on a scheduled basis. If preventive maintenance is not performed regularly, vehicle life span will be greatly reduced. 

Some vehicles may be prone to excessive breakdowns requiring expensive repairs, causing a vehicle to be out of service when least expected and possibly when needed most. Vehicles may become unsafe due to lack of PM. Proper maintenance will also help prevent litigation from negligence. 

Preventive maintenance is as important as driver safety programs. If a vehicle becomes unsafe due to lack of maintenance or repair, the fleet manager can be held liable for negligent entrustment. As defined, liability is premised upon providing an employee with a dangerous tool or instrument, such as a vehicle, while knowing, or having reason to know, that use of the vehicle creates unreasonable risk or harm to others. Simply stated, the vehicle must be safe to operate. Should the brakes fail causing a serious crash or fatality, the vehicle is impounded by authorities for investigation. 

Should the investigation determine that bad brakes or other vehicle malfunctions contributed to the accident, the authorities can seek a court order to obtain vehicle maintenance records. If your operation fails to practice preventive maintenance under these circumstances, you could be prosecuted for a negligent act, which you failed to prevent.