Lemon Law for California

One of the key documentation elements to a Lemon Law case is the “repair order” and “invoice.”  Most states’ Lemon Laws use the number of times you visited the dealer to get a particular defect corrected in determining whether a vehicle qualifies as a “lemon.” 

Dealers can create a problem by what is known as the “open” repair order. An example of this is when a customer has a “repair order” written (and gets a signed copy of it) and the dealer calls and says “we had to order a part, come on by and pick up your car, we are going to hold the repair order ticket open until the part comes in.” This is where you say “no”. If the car is available to drive, but parts are on order, then you need have the dealer close out that repair order and give you an invoice when you pick up the vehicle. You are entitled to a closed repair invoice that accurately reflects what the dealership did to diagnose your written complaint, what parts are on order, the “date in/date out” as well as “miles in/miles out”, giving you a record of that repair visit. 

By following the information outlined above, you will avoid having two repair attempts by the dealer turning into one, because they otherwise were going to “hold open” the repair order and only give you one invoice after parts had come in, and repairs were completed. 

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.

This is where many consumers get themselves into trouble – unknowingly. If a consumer wants to pursue his/her California lemon law rights by attempting to “settle” their “case” themselves, they can expose themselves to a “settlement” that is substantially less monetarily than is afforded by the California lemon law statute. Why? If a consumer attempts to deal directly with the automobile manufacturer seeking a  “buyback” of their vehicle, the automobile manufacturer has no “rule book” on lemon law to follow, but rather, can simply make any offer that they think the consumer may think is “reasonable”, or that they simply will accept.  Worse yet, many vehicles have substantial safety and driveability issues that make them a unsafe lemon. Even if the automobile manufacturer was to offer a lemon law “buyback”, that does not necessarily mean the vehicle is being repurchased as a California Lemon Law buyback wherein the vehicles title is branded “lemon law buyback”. Rather, the vehicle is simply repurchased as a “goodwill” buyback, with the consumer signing a settlement document that releases the manufacturer from all “California lemon law buyback” responsibility, allowing these defective vehicles to be resold to unsuspecting consumer(s) without any “lemon law buyback” disclosure!

Having our law firm handle your lemon law case assures you that when vehicles are repurchased, they are repurchased pursuant to our California lemon law, not by a “goodwill” offer. You can eliminate all this time, hassle, downside and pitfalls by having California’s largest lemon law firm handle all this for you by simply calling us.

So, here are some things that you’ll need to consider when you’re shopping around for a good attorney to handle your lemon law case. For instance, you will want to get a consultation to figure out exactly what type of lemon case you have. After that, you can follow the tips I’m listing below to help you to find the right lemon law attorney to handle your case.

EXPERIENCE
You should make sure that the firm or lawyer that you choose has experience in handling your specific type of case. The law has become very specialized in lemon cases and you will need a law firm that is not new to this area. Otherwise they may not know how to get the best results for you. However, you should be wary of any law firms which use the term “experts” or “specialists” because they’re not legally allowed to use those terms.

NUMBER OF ATTORNEYS
You should also ask how many lawyers in that firm are not only licensed in your state, but how many of those lawyers can actually handle your lemon law or other type of case. Just like in any other type of company, people get sick or leave for whatever reason. Since your case will likely take many months to resolve, you want to be sure there is another attorney in the firm who can take over if your own lawyer can’t continue for any reason.

ATTENTION
You also want to make sure that you can meet your attorney before he or she represents you. Just like a doctor, a lawyer is a professional that you trust a very important part of your life to. Because of this, you should be wary of any firm which will not allow you to meet your attorney or those who give you the run-around. You should always know what is going on in your case.

LOCATION
You should also make sure that your lawyer is at least located in the same State where your case will be handled. In general, lawyers must be licensed in the State in which they are doing their legal work in order to practice. If the lawyer is not located in your state, he/she may have problems effectively representing your interests.
If your lawyer is forced to travel great distances to appear on your behalf, or if he/she is hiring someone else to make any court appearances on their behalf, you should consider whether this will influence his/her judgment when he/she confers with you about any settlement offer made by the opposing side.

REPUTATION
Believe it or not, a lawyer’s reputation is one of the most important things you need to consider when you make a decision. How other lawyers feel about his/her performance and more importantly how former clients feel will give you a good idea what that lawyer can do for you. Most lawyers will freely and willingly give you information about their reputation if asked and some will even provide you with proof of their track records if you request it. Also, if you know someone who has had to deal with a lemon case, you can ask them how their lawyer was with them. All of these things can help you in choosing your next lawyer.

COST
One thing you should consider is the cost of all this. Not all states will allow you to recover the whole amount of the lawyers fees under the state lemon laws, this is why I highly suggest you take the time to research the laws in your state. However, the Magnuson-Moss Warranty Act is a federal law that may allow you to recover the cost of hiring a attorney. If your state laws don’t allow recovery of fees, or even if they do, you will still want to be sure that the cost of the lawyer is affordable because there is no guarantee that you will win your case once it gets to court. You need to be sure that you can afford the lawyer that you get. Since some will require a retainer, it is best to ask about this up front. For those that do not, know that you will either have to pay the fees along the way or out of the award at the end.

Now, here’s the thing. If the attorney is any good and confident in their ability to win your case for you, they should be willing to take your case on a contingent fee basis. Which means if they don’t win your case for you it won’t cost you anything. The worst case scenario should be that you have to pay a down payment and make payments along the way. One other thing, make sure that if the fees are on a contingent basis that they are set fees and not a blanket percentage of your eventual award.

Personally, if I had to go thru all this again I’d only choose a confident lemon law lawyer who would take my case on a contingent fee basis. This is my own personal opinion though, you should always be sure to do the research required to know your rights, that way you can make your own decision based on your best interests.

So, now that we’ve covered all that, here are some quick questions that you should ask your lawyer before hiring them or even considering them. Check for quick and concise answers and ask them to put all in writing before you make any final decisions.
1. How many cases like this have you handled before and what was the result of those cases?
2. What are the resources that you and/or your firm have at your disposal?
3. Are you going to try to settle out of court or do you push for court trial?
4. What are any and all of the upfront fees? If there are none, how much of the settlement do you take upon trial end?
5. What type of billing procedures does your firm require, and do I get a detailed report in writing?
6. If you will be itemizing the costs, can I get a detailed and itemized written report of the costs each week?
7. Do you have a working knowledge of lemon laws in my state?

These are just some of the questions that you should ask before hiring your lawyer. You also want to be sure that they can provide you with details on what you have that will make your case for you. You don’t want a lawyer that just wants to make a few bucks, you want proof that you have a case that you can win, otherwise, you will not only be stuck with a car you can’t use, but you might end up having to make payments to a lawyer as well. With that in mind, lets look at…

Lemon law lawyers act a lot like a detective on your behalf, their first task when they are retained is to
reconstruct the entire history of your car, from the date of production to the time the case is opened. These lawyers will help you to determine:

• whether the vehicle was damaged at the time of delivery;
• if the financing paperwork can prove that there was an obvious fraud or deception committed against you;
• whether repairs were attempted by the dealer beforehand to cover up any defects;
• the time actually spent for each repair;
• the amount of money that was paid by the manufacturer for warranty repairs;
• whether that model has any known defects that the dealers knew about;
• Whether there are any actual service file notes that will reveal any unresolved, undisclosed safety concerns and other inquiries.

As you can see, the attorney you choose to represent you in your lemon law case is an extremely important part in the success or failure of your case. Now, since the lawyer will get paid whether you win your case or not it seems like a good idea to pick one that knows what their doing.

Here’s a secret tip that should be obvious. Car companies do NOT want to go to court on a lemon law case.  The risk of going to court far outweighs the cost to settle.  Here’s why:

a) Defending a lemon law case is expensive for these companies.  By the time a lemon law trial is completed, the car company can easily spend $20,000 defending itself from your claims. These cases are rarely completed with their own attorneys so it is really all money out of pocket to them. With that much money at risk, defending a lemon law case is already very expensive, even if they win.

b) In most cases, the lemon law lets you collect up to three times the damages that you are owed. That means that if your car originally cost $25,000, they can risk losing $75,000 due to a jury decision, plus their own attorney fees, plus the possibility of having to pay your attorney fees. Since they can replace your car at cost AND still recover some of their loss by selling your old car, it makes more sense to replace your $25,000 car with a new one that can cost them as little as $10,000. Their choices are really simple, they can risk losing $100,000 or more or settle with you at their cost for $10,000. 

c) Car companies do not want to have to deal with the bad publicity from dealing with a lemon law case.  Obviously, your case is likely not going to make headlines in the NY Times, but it still registers as newsworthy and could be picked up locally. Public attention to a lemon law case risks more than a loss in court for these companies. It can also represent a loss of their public image which can result in a significant loss of sales.

The Greek people do not have the franchise on myths or mythology.  California consumers have their own set of unique myths when it comes to automobile dealerships and/or their selling/servicing dealer.
Here are some of the most common myths, so you can understand them, and adjust your thinking:

1.  “My Car Dealership should Help me”. 
Huge misconception. Yes, they want you to be happy to buy another car or buy service, but they are not the party that facilitates the lemon law buyback. The automobile manufacturer does. I hear horror stories of people threatening their car dealer with lines like “this car is a lemon, you have to take it back and give me my money back”, or “I’ll sue you” Hilarious. The car dealer is simply the franchisee of the automobile manufacturer. They don’t have to do anything for you. They just sell and repair the cars. The ultimate responsibility for a lemon law claim rests with the automobile manufacturer. Oh, sure, the dealer will be more than happy to trade you out of your present “lemon” vehicle and make a ton of money off you, and you lose your equity (or worse yet ‘buy’ negative equity into the next contract). They are simply helping themselves to another sale, not helping you at all, and that is not “lemon law”. No, they have no duty to help you in a lemon law case. If they choose to “get in the middle” on your behalf, then watch out for future repair visits coming back with wording on the Repair Order Invoice of “no problem found” or “cannot duplicate customers concern”. The Service Department talks with the Sales Department. They see opportunity to sell another car instead of fixing yours. Yes, it happens more than we want to think. Most consumers are best served to never mention “lemon law” or “buyback” to their dealer or dealer’s service department personnel. This topic belongs with the manufacturer. An experienced lemon law attorney can best advise you on this.

2.  Alternate transportation (AKA: loan car)
Here is another huge misconception. Consumers think that they automatically get a loan car if their car breaks down or goes in for service. WRONG! Your new vehicle limited warranty does not have a provision for alternate transportation/reimbursement/loan cars. Some dealers have a loan car system in place (courtesy car). This is a bonus if your dealer offers this. But no, the manufacturer nor the dealer have a duty to provide you with alternate transportation. Some customers purchase a “Service Contract” that provides for rental car reimbursement. This is different, and is not a factory warranty provision issue.

3.  “My salesperson is of no help to me”
They were there to make the commission off the sale of the car to you. That’s it. They have nothing to do with the California Lemon Law process.

4.  “My dealer told me that I’m getting a buyback”
WHAT buyback? If you complained to your dealer, unless and until you have a written “settlement and full release” document from the automobile manufacturer, you have nothing more than conversation. The only “buyback” is with a written settlement agreement by the manufacturer or their appointed agent, signed by them AND you. The potentially worse part of this “offer” is that when the automobile  manufacturer makes a “settlement and full release” document, they do NOT have to follow the California Lemon Law statute, as it’s “between you and them and goodwill”. I would strongly encourage you to consult with an experienced California Lemon Law attorney prior to signing any kind of legal document or “settlement” from an automobile manufacturer.

A consumer can have a Lemon Law case when a variety of defects demand continuous repair. The facts of each individual case must be taken into consideration but it is possible to have a qualifying Lemon Law case based on the cumulative number of days in the shop alone.

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[ To Learn more our services and areas of practice, please visit our website at www.LemonLawIntel.com ]

Families buy them for room and safety, but some minivans are now scaring local drivers.  

Lisa Ray, of Penn Hills, said she got a sweet deal on her 2005 Chevy Uplander. She bought it new and it came with a television and all the bells and whistles.
Kelly Zajicek, of Allenport, said all of her friends were excited when she bought her new 2007 Chevy Uplander van last spring. She finally had a vehicle big enough to carry her daughter and several fellow cheerleaders to practice and games. Unfortunately, it wasn’t long before Zajicek started having trouble with her van.
“This right door will open sporadically by itself. It will not close properly. It’s opened going down the highway,” Zajicek said.
That’s right, opened while the van was moving-common lemon law case. It happened one time when Zajicek was going 55 mph on the highway with her daughter and friends in the van.
Dani Zajicek said, “It flew open and me and another girl was in the car and we were scared that we were going to fall out or something was going to happen.”
Lisa Ray said she had very similar problems with her power doors. Her right passenger van door popped open as she was driving and her 4-year-old and 13-year-old daughters were in the car.
Her daughter Taylor Ray Jetter said, “I looked at my sister and she starts screaming the door is opening I’m going to fall out.”
Ray now puts her 4-year-old in the opposite seat.
Channel 11 searched the National Highway Transportation Safety Administration (NHTSA) database and discovered over 20 complaints about similar problems with the Uplander’s doors.
The Uplander isn’t the only GM made van with door complaints. There have also been similar complaints for the Pontiac Montana, Saturn Relay, and Buick Terraza.
This doesn’t surprise Bob Silverman of Kimmel and Silverman, a law firm that specializes in the lemon law.
Silverman said, “I’ve had clients, hundreds of clients, complain of doors not closing, popping open when they felt they were closed, warning buzzers going off and actually some of my clients saying the doors are opening while driving. Very serious issues.”
Silverman said despite repeated complaints, GM has never issued a recall for the vans.
Ray and Zajicek took their vans back to the dealers several times.
Zajicek said, “I had the vehicle for 12 days the first month I owned it. It was at the dealership the whole time trying to get this door replaced.”
In all she has documentation that shows she took it back to the dealer five times between in the six months she had the car. Ray also took her van back to the dealer several times.
Despite several attempts to fix the problem he said, “I’m being told there is nothing wrong with the van.”
Zajicek contacted General Motors.
“Sometimes they didn’t even listen to my concerns and validate them. They’d open up a case and not follow through with it.”
Silverman has heard that complaint before, “With these Uplanders we saw a huge trend in the beginning where manufactures instructed dealers, on the side, don’t find anything wrong, it’s normal, clean the contacts, it could be debris or something causing the door to fly open. It isn’t.”
Finally, Zajicek contacted Silverman. Within two weeks she got good news.
“They are going to buy back the vehicle which means I will not have to worry about my family’s safety. GM is doing the right thing.”
And Zajicek does not pay any attorney fees. Silverman said the quick resolution of Zajicek’s case is a little unusual.
“That case involved a newer vehicle with repairs that occurred faster under PA law and where the cable actually snapped. Once where the door did open when driving and essentially there is no way to deny it on GM’s part,” according to Silverman.
Zajicek also had all her repair work and phone calls documented which made filing the claim easier.
Silverman said, “A lot of manufacturers including GM tend to do what is right. “
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[ To Learn more our services and areas of practice, please visit our website at www.LemonLawIntel.com ]