MemorandumTo: Dinah Surname, ParalegalFrom: Johann Christine Alcaraz, Paralegal-In-TrainingClient: Geronimo “Jorge” D. ConsumerFile: PLS320Subject: Analysis of Lemon Law Remedies for Nonconforming Vehicles under Warranty Date: December 16, 2015 

PurposeYou asked me whether Mr. Consumer (“Jorge”) has any recourse regarding his defective recently purchased vehicle (“lemon”). His Honta Civolla frequently stalls yet examination at the dealership produces no explanation. California Civil Code §1793.22 states that if there have been a reasonable number of attempts to repair the vehicle, but its use, value, or safety remains impaired, the manufacturer must either replace it or provide reimbursement. Based on the irregular performance of the Civolla, and Jorge’s timeliness in communicating with the dealer and manufacturer regarding the defect, it seems likely that these remedies afford him solutions.   FactsJorge is having trouble with his Honta Civolla purchased 8 months ago. The Civolla stalls frequently with the first incident occurring within the first week after purchase. A month later, it stalled on the highway during a business trip. Since then, the stalling occurs at least once a month. No injuries have been sustained by Jorge or anyone else from the stalling, but he mentioned that it felt dangerous because the power steering also fails.

 The day after he returned from the trip, Jorge took the car to the dealership for examination and they found nothing wrong. He has taken it back twice more to no avail. No other mechanics have been consulted. His warranty is for 36 months/36,000 miles and covers all components except normal wear and maintenance items; there is no arbitration clause or third-party dispute resolution entailed in the warranty. Jorge has also written to the manufacturer to inform them of the problem and has yet to receive a tailored response (only a generic automated response has been received). Additionally, he has attempted to call customer service, but even after being on hold for half an hour, he was unable to speak to a live person.

IssueUnder California Civil Codes §1793.2 and §1793.22, is Jorge D. Consumer’s Honta Civolla considered a nonconforming vehicle when it frequently stalls? Does it qualify for replacement or reimbursement?     

 Brief AnswerYes; when Jorge’s Honta Civolla frequently stalls it “substantially impairs the use, value, or safety of the new motor vehicle to the buyer” deeming it a nonconforming vehicle. Three attempts to diagnose the defect of the Civolla at the dealership were unsuccessful and those attempts satisfied the “reasonable number of attempts” requirement. Because of the Civolla's poor performance and Jorge's judicious manner in notifying the manufacturer and its agent—the

dealership—of the Civolla’s irregularities, it is very likely that Jorge will qualify for either replacement or reimbursement as a remedy for his situation.     Rules Governing Examination for DiscoveryThe following Civil Codes are “lemon laws” that add to the Song-Beverly Consumer Warranty Act protections, specifically applicable to newly purchased vehicles under warranty. A “lemon” is considered a newly purchased, yet nonconforming, vehicle. Only the relevant sections of the codes applicable to Jorge’s question have been included and paraphrased. WEST’S ANN. CAL. CIV. CODE §1793.2Paragraph (a) establishes that the vehicle must have an express warranty. (3)(b) requires the manufacturer’s repair facilities to service the vehicle within 30 days to conform to the applicable warranty. (3)(c) states the buyer shall deliver nonconforming goods to the manufacturer for repair. (3)(d) provides that if the manufacturer or its representative cannot repair goods to conform to the warranty, the manufacturer shall replace the goods with one that is substantially identical or reimburse buyer— it is the buyer’s choice. WEST’S ANN. CAL. CIV. CODE §1793.22TANNER CONSUMER PROTECTION ACT

Paragraph (b) establishes that a “reasonable number of attempts” is presumed to have been made to conform a new motor vehicle to the express warranty. It also sets an 18-month or 18,000-mile threshold. (b)(1) provides that if the defect results in a condition likely to cause death or serious bodily injury, the consumer must first attempt to repair the nonconformity at least twice and directly notify the manufacturer at least once. (c) notes that if a qualified third-party dispute resolution process exists, this must first be satisfied before proceeding to assert the presumption in (b). (e)(1) gives us the nonconformity definition: “substantially impairs the use, value, or safety of the new motor vehicle to the buyer…” AnalysisNon-Conforming Vehicle Under WarrantyThe first question is whether Jorge’s Honta Civolla is indeed a non-conforming vehicle. §1793.2 (3)(b) and (c) require that the defective vehicle be delivered to a service facility for repair attempts. The facility is given 30 days to conform the vehicle back to its warranty's guaranteed

condition. A month after Jorge purchased the Civolla, it stalled during a business trip and he brought it to the dealer for repair. The dealer could not find anything wrong yet the stalling continued well past the 30 days. Jorge’s warranty is for 36 months/36,000 miles. It has now been 8 months since Jorge initially purchased the vehicle. Moreover, Jorge describes the stalling as dangerous since the power steering is affected, which “substantially impairs the use, value, or safety” of the Civolla deeming it a nonconforming vehicle. Third-Party Dispute Resolution§1793.22(c) sets a third-party dispute resolution requirement (i.e., arbitration) that Jorge must first satisfy before seeking remedies beyond repair. However, Jorge’s warranty does not include an arbitration clause. So, under §1793.22(c), this allows Jorge to assert the “reasonable number of attempts” presumption.    Reasonable Number of Attempts§1793.22(b) provides that Jorge can only be offered the available remedies if the manufacturer or its representative is unable to repair the nonconforming vehicle after a reasonable number of attempts within 18 months or 18,000 miles. Jorge has attempted to repair his Civolla at the dealership three times in the past 8 months which satisfies §1793.22(b)’s requirement. More specifically, (b)(1) provides that “if the defect results in a condition likely to cause death or serious bodily injury, the consumer must first attempt to repair the nonconformity at least twice and directly notify the manufacturer at least once”. Jorge has also attempted to directly notify the manufacturer and still awaits a tailored response. He has even attempted to call customer service, but after 30 minutes on hold, no live person spoke with him. In addition, the Song-Beverly Consumer Warranty Act provides that every time there is an opportunity for repairs, it counts as an attempt even if no repairs actually happened. This directly affects Jorge because the dealers could not find the actual fault, yet multiple attempts at repair have gone underway to no avail. Regardless, these attempts are considered an opportunity for repair. Possible OppositionOne might argue that the Civolla’s defect should not be considered “a condition likely to cause death or serious bodily injury” per §1793.22(b)(1). Instead, §1793.22(b)(2) requires that the dealer makes at least four repair attempts before Jorge can seek remedies and, presently, he has only tried three times. In response, the unpredictable nature of the Civolla’s stalling presents plenty of dangerous scenarios that may cause death or serious bodily injury.  Moreover, the three times Jorge brought his vehicle for repairs were unsuccessful. The odds are very slim for the fourth attempt to successfully repair the vehicle to conform to its warranty. Even if a fourth attempt was made, Jorge remains in his current predicament seeking recourse. So, in this case, the nonconformity is more than just poor car performance. Rather, the nonconformity threatens Jorge’s safety by

raising the risk of harm or death. This allows us to properly justify applying §1793.22(b)(1) instead of §1793.22(b)(2). RemediesAt this point, Jorge has satisfied the prerequisites of attempting repair with the manufacturer and its agent, the dealer. §1793.2(3)(d) provides that if the manufacturer or its representative cannot repair goods to conform to the warranty, the manufacturer shall replace the vehicle with one that is substantially identical or provide reimbursement—it is Jorge’s decision.

ConclusionBased on the irregular performance of the Civolla, Jorge’s timeliness in communicating with the dealer and manufacturer regarding the defect, and three unsuccessful repair efforts by the dealer, Jorge has a strong case towards seeking recourse in the form of either replacement or reimbursement.