Lemon Law for California

• Often times, your new car isn’t suspected of being a Lemon until it is too late (out of warranty, over the mileage limit, etc). If you keep a record of every repair visit, starting with the first one, you will protect your rights under Consumer Laws. Our Repair Logmakes it easy to record every Repair Attempt.

• Document everything! This includes notes, who you talk to, what is said, dates and times. Put your complaints in writing and keep a copy for yourself. Be sure to obtain a copy of any Warranty Repair Orders. Demand a copy if necessary and if the dealer will not give you one, be sure to document the fact. When you pick up your car, obtain an Invoice. The dealer may claim that you are not entitled to an Invoice because there were no charges (you were not invoiced for any repairs). It is up to you to prove repair attempts! The final Invoice shows what was or was not repaired.

• Make absolutely sure the dealer records your complaint on the Repair Order exactly as you describe it. You must make sure to describe the defect exactly the same on each repair visit or you may forfeit your rights under the “reasonable attempts to repair for the same defect” clause.

• Be sure that the date, time in, and odometer reading are recorded as well as the date and time you picked up the car. In most States you are covered by the Lemon Law if the vehicle has been in the repair shop for an accumulative number of days during the coverage period.

• If your car fails in the middle of the desert or in the middle lane of rush hour freeway traffic, record the date and time, the amount of time you had to wait for assistance, whether or not you had to rent a car, and your general overall feelings. The emotional trauma dealing with a defective vehicle has a lot of bearing on your case should you need to go to arbitration or court.

Buying an automobile is not a process most people enjoy. Cars are expensive, and if you choose poorly, you are stuck with the car for quite some time. So you want to buy one that’s comfortable, suits your needs and is mechanically reliable. Fortunately for buyers, every state now has some version of a lemon law, designed to protect buyers from vehicles that are both mechanically unreliable and seemingly unrepairable. If a vehicle spends a month or so being repaired during it’s warranty or needs three or more repair attempts to fix the same problem, most states require the manufacturer to either replace it or refund the purchase price.

But what about used cars? Buyers of used cars are generally on their own, but some states, such as California, have passed separate laws protecting buyers of used cars. Not every state has such protections, as that sort of legislation is still in its infancy. There is a small amount of protection available, however. Most, if not all, states have strict regulations regarding how manufacturers dispose of vehicles that have been determined to be lemons. These vehicles, returned to the manufacturers by their original owners, are usually repaired and resold. And most states require that these vehicles be prominently branded as such, usually on the title. In addition, most states also require that any dealer selling such a vehicle must disclose the vehicle’s history to any potential buyer.

What if something goes wrong?

Unfortunately, something often goes wrong, and that problem usually involves what is known as a “laundered lemon.” While most states do require strict declaration of a vehicle’s history and that the title be marked, not all states do. Some dealers have been known to buy a known lemon, title it in a state that has no such requirements, and then transfer it back to a state that requires that lemon law vehicles be branded as such. The stop in the other state usually strips, or “launders” the vehicle’s history as a known problem.

And the buyer gets stuck. There have been numerous cases in the past few years of people innocently buying used vehicles from dealers that turned out to have notorious history as lemons. When the buyers inquired about the history of these cars, they were often told “We bought it at an auction; we don’t know.” That may or may not be true, but the buyer has no way of knowing.

While the used car market still carries a “buyer beware” mentality, there are some things a buyer can do. Them most important thing would be to do a check on the car’s Vehicle Identification Number, or VIN. There are several companies, such as Carfax, that can use the VIN to trace the car’s history. It only costs a few dollars to use the service, but if it spares you thousands of dollars in repair costs, then the money is well spent.

To compound the problem of the unattractiveness of warranty work to the dealership technician, frequently dealer and manufacturer representatives are given training in the Lemon Law, and they will use it to their advantage, and against their customers. An example of this would be, a customer complains for the fourth time in a year of a transmission malfunction. The dealer or manufacturer rep may then say, “But it wasn’t the same transmission part this time, so therefore it does not qualify under the Lemon Law.” “They will say that it was this part one time, a different part the next time, even though it may have been the same part both times. Absolutely, they do things like that in avoidance of lemon law cases.”

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.

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

You may still be entitled to compensation. There are other laws which govern warranties which may be used to assist you, including Federal law.

The best thing to do is maintain the status quo until you have the chance to speak with a qualified attorney. In other words, do not allow the condition of the vehicle to change by having any repair work done to it. However, if your vehicle is dangerous and you continue to use it, you do so at your own risk. It is important to remember that if you decide to go forward many of the manufacturers will want to inspect your vehicle. You have a much better chance of obtaining the relief you seek if you can demonstrate a defect. If you cannot, you may still be entitled to compensation, but the chances of you getting what you want may be reduced somewhat.

If the dealer refuses to repair your vehicle, you may also have a claim. The manufacturer has given a warranty, which in most circumstances, requires the dealer to do repair work. If the dealer and/or the manufacturer then refuse to do the repair work, you may have a claim under the Lemon Law, Federal Warranty Law and/or other laws.

Basically, it is the same as a Lemon Law case, however, with two notable differences. First, the standards or requirements for breach of warranty are not as clearly defined. Second, the remedies for breach of warranty are also not as clearly defined. Therefore, you should consult a qualified attorney to discuss whether you may have a breach of warranty case.

There is really no such thing as “Qualifying.” This is a common misconception (sometimes spread by uninformed individuals at your authorized dealer). First, the standards that are used by the lemon law to define nonconformities and reasonable number of repair attempts can be interpreted differently by different people. Ultimately, those people may be a jury deciding you case. Second, there are other laws which can be used to help you receive compensation in the event that you do not have a case for technical reasons under the Lemon Law.

You still may be able to invoke the Lemon Law as long as you can justify that the number of repair attempts or days out of service you encountered were unreasonable.

You may also have other rights under other state and federal laws, such as the following: the federal Magnuson-­Moss Warranty Act, the Uniform Commercial Code (UCC), your service contract or extended warranty, secret warranties, implied warranties, express warranties, unfair and deceptive acts and practices (UDAP), or strict liability and negligence. Consult an attorney, to determine which remedy would be best for your situation.

What is considered a reasonable number of repair attempts will depend on the circumstances including the seriousness of the defect. For example, one or two repair attempts may be considered reasonable for serious safety defects such as brake failure, depending on the exact situation.
A special provision, often called the “Lemon Law,” helps determine what is a reasonable number of repair attempts for problems that substantially impair the use, value, or safety of the vehicle.
The “Lemon Law” presumption is a guide, not an absolute rule. A judge or arbitrator can assume that the manufacturer has had a reasonable number of chances to repair the vehicle if all of the conditions are met. The manufacturer, however, has the right to try to prove that it should have the chance to attempt additional repairs, and the consumer has the right to show that fewer repair attempts are reasonable under the circumstances.
Be sure to check your warranty and owner’s manual for instructions. You may be required to directly notify the manufacturer of the problem(s). It is a good idea to send your written notice to the manufacturer at the address shown in the warranty or owner’s manual by certified mail, return receipt requested so that you have proof that your letter was received. Keep a copy of all correspondence.
If the manufacturer maintains a state-certified arbitration program, the consumer must submit the warranty dispute to the arbitration program before the consumer can take advantage of the presumption in court. Arbitration is an alternative to court proceedings. The consumer may assert the presumption during arbitration. Information about any arbitration should be described in the warranty or owner’s manual.

Once you have reached your point of “reasonable returns for repair,” which varies with every situation, you have a right to demand that the vehicle either be repaired, replaced, or that a refund be given. You have these rights even if the vehicle is out of warranty, so long as the unrepaired defects occurred first within the warranty and continue to occur afterwards. Many unscrupulous dealers tell people that the vehicle is out of warranty and they have no rights, or they must pay for repairs themselves. This is another reason why it is important to document each occurrence of the defect and repair attempt within the warranty period. The law states that the warranty continues to protect a consumer so long as there is a record of at least one attempt to repair the problem within the warranty period.

The Lemon Law also requires the warrantor to pay for the consumer’s attorney’s fees on a meritorious claim. Therefore, anyone may bring a lawsuit under the Lemon Law regardless of their financial condition.