iBet uBet web content aggregator. Adding the entire web to your favor.
Link to original content: http://www.lemonlawspecialists.com/book/
This publication is intended to provide an overview of the California Lemon Law and should never be used as a substitute for legal advice. Call our California Lemon Law offices today at 1-888-395-3666 or visit us online at LemonLawSpecialists.com.
The contents of this book are licensed under Creative Commons Attribution - Non Commercial - No Derivatives. http://creativecommons.org/licenses/by-nc-nd/3.0/.
California Lemon Law attorney Kurt Delsack, Esq. earned his first law degree from the Catholic University of America's Columbus School of Law in Washington, D.C. Continuing his law studies, Mr. Delsack graduated with an advanced Certificate in Communications Law from CUA's highly acclaimed Institute for Communications Law Studies. Mr. Delsack obtained his undergraduate Bachelor of Business Administration (BBA) from the City College of New York (CCNY) of the University of New York.
Kurt Delsack is licensed to practice law in California, Pennsylvania, and the District of Columbia. He is also duly qualified and admitted as an Attorney and Counselor of the Supreme Court of the United States.
Kurt Delsack began his legal career helping California consumers by representing mobilehome owners against the owners of mobilehome parks who failed to maintain safe and sanitary living conditions. Mr. Delsack feels privileged to have been able to help improve the living conditions of these many California mobilehome owners.
As a consumer advocate Kurt soon started representing California consumers who had purchased defective motor homes. Eventually this led to Mr. Delsack's firm, the Law Offices of Delsack & Associates, P.C., to represent consumers throughout the state who had purchased or leased defective automobiles, trucks, SUV's, motorcycles and boats.
Since 1987 the Law Offices Of Delsack & Associates, P.C. have helped thousands of clients recover millions of dollars by getting the manufacturers to repurchase their defective vehicles which were either purchased or leased.
The Law Offices of Delsack & Associates, P.C. has become one of California's leading lemon law firms specializing in helping consumers throughout the state with their defective vehicles. The Law Offices of Delsack & Associates' website LemonLawSpecialists.com was one of the first to provide valuable information to California consumers informing them of their rights under the California Lemon Law statute, as well as other consumer protection statutes.
Mr. Delsack is a member of the California Bar, the Los Angeles County Bar Association, and the Consumer Attorneys Association of Los Angeles. He is licensed to practice before the U.S. Supreme Court and all the courts of California, Pennsylvania, and the District of Columbia.
Kurt has been featured on several consumer television and radio shows including: ABC TV's "Consumer News" with Ric Romero, Fox Morning News, and KNX Radio's "Money 101" with Bob McCormick. He has written attorney answer columns regarding the California Lemon Law for Martindale Hubbell's "Ask an Attorney", and has authored a regular column for the California Golden State Manufactured Homeowners League (GSMOL) newsletter.
There are a few general requirements for a problem vehicle to qualify as a lemon.
These are not absolute requirements to demand the repurchase of a lemon vehicle. In fact, there are many situations that do not meet these guidelines, but may still entitle a consumer to lemon law protection. Also, it is important to note that it is not required that a California consumer go through arbitration in order to pursue a California Lemon Law claim. In the case that a consumer initiates an arbitration proceeding and loses his or her case, it may become a difficult burden to overcome in any future legal actions brought by the consumer.
If you qualify for protection under the California Lemon Law, the Law Offices of Delsack & Associates, P.C. will demand that the manufacturer reimburse you for:
The manufacturer is allowed to deduct from its reimbursement to the consumer, a "usage fee" based on California's statutory mileage formula. There may also be other deductions allowed under the California Lemon Law statutes for "third party" additions. These will be explained to you by your attorney.
It is important to note that there is no damage or harm to your credit rating by going through the California Lemon Law process. The California legislature enacted the law to help consumers get out of a bad situation and to make it easier for an individual or small business to stand up to the automotive companies. The California Lemon Law simply returns consumers to approximately the same financial position they were in before they purchased or leased their "lemon."
Perhaps the most common misconception about the California Lemon Law is that you must have provided the manufacturer a certain number of repair opportunities "within" the first 18 months or first 18,000 miles. This is just not true! Yet it may have stopped thousands of Californians from trying to get their money back. Some dealerships, California state agencies, and other "experts" often give consumers this wrong information.
Regardless of what these sources may have said, or what you may have heard, most vehicles qualify for repurchase under the California Lemon Law because of repair attempts made by a dealership, or an authorized repair facility, after the first 18 months or first 18,000 miles. The initial repair attempt, however, must have been made while the vehicle was covered under the manufacturer's original warranty.
Retaining a knowledgeable and experienced California Lemon Law attorney is the best way to help you get rid of a lemon. There are however, some steps you can take to help ensure a successful and speedy outcome of your demand. Following these steps will help you to establish a complete record of the repair history and will help you win your case.
The addition or modification of any component on a new vehicle, or a used vehicle eligible for lemon law protection, may seriously affect its performance and may disqualify you from obtaining relief under the California Lemon Law.
Examples that most frequently cause disqualification are: replacing the original tires and rims with a different size or type, making electronic or electrical modifications to the entertainment or communications systems, and installing lift kits in pickup trucks or four wheel drive vehicles.
Changing the tires or rims may alter sensitive component settings and may result in uneven wear of tires, brakes, and parts of the suspension system.
Likewise, the addition of lift kits will seriously affect the vehicle's ride and height, and is sufficient to allow the manufacturer to disclaim any liability under its new car warranty for affected components.
The installation of sound systems or multimedia systems can have detrimental effects on the existing wiring, computer systems, and power supplied to other components. Typically, dealers rely on third-party installers because they do not have the skills or the necessary equipment to make such installations.
Most manufacturers' new car warranties state that alterations and modifications to original equipment will prevent you from making a claim under the California Lemon Law if it is found that the installation of a third-party product is the cause of the problem. The dealer and sales personnel will likely not tell you of this warranty exclusion. The manufacturer is only responsible for those items which were installed at the factory and will not reimburse you for such third-party items, nor accept the responsibility for replacing parts which may have been affected by such installation or modification. In fact, the manufacturer may even refuse to repurchase the vehicle if such additions or modifications can be shown to be the cause of substantial problems related to safety, value, or use.
The Magnuson-Moss Warranty Act is a United Stated federal law enacted in 1975 to protect consumers from deceptive warranty practices. The Act was sponsored by Senator Warren G. Magnuson of Washington with co-sponsors Senator Frank Moss of Utah, and U.S. Representative John E. Moss of California. The purpose of the Act was to make product warranties more easily understood and enforceable, and to provide the Federal Trade Commission with a means of better protecting consumers. The Act does not force a manufacturer to include a warranty with its products but if there is one it must be in writing and comply with the rules of the Magnuson-Moss Warranty Act. The three basic rules that the Act enforces are:
Prior to the lemon laws, automotive consumers had little protection when they purchased a vehicle that had repeated manufacturing defects. The consumer was expected to return the vehicle for repair under the manufacturer's warranty until it could be fixed. This was not only an inconvenience, but could be dangerous if the problem was a safety defect.
The California Song-Beverly Consumer Warranty Act was enacted in 1970 to protect consumers who purchased or leased new automobiles that turned out to be "lemons". The Act stated that if the manufacturer or its authorized dealer was unable to service or repair a new vehicle to meet the terms of the manufacturer's written warranty after a reasonable number of repair attempts, the manufacturer was required to repurchase the vehicle and return the purchase price to the buyer or lessee, or to replace it. The term "reasonable number of repair attempts" was, however, poorly defined and left to the discretion of the manufacturer. A manufacturer could also refuse to repurchase the vehicle if it determined that the vehicle had been "abused" by the buyer as, for example, if the vehicle maintenance and instructions for proper use had not been strictly followed.
In January 1983, California Assembly Member Sally Tanner proposed new guidelines for California's Lemon Law. These guidelines clarified a "reasonable number of repair attempts" according to the nature of the problem and the safety of the vehicle. The Act was further expanded to include the sale or lease of used vehicles purchased while still covered by the manufacturer's original new car warranty. This law became the model for lemon law statutes in all 50 states.
Enacted in 1987 the California Arbitration Act withdrew the power from the states to require judicial resolution. This act encouraged manufacturers and consumers to resolve their disputes by non-judicial means, such as mediation and arbitration, rather than resorting to court.
The Consumer Notification Act was introduced in 1991 to protect consumers considering purchasing or leasing repurchased "lemons". Under this act, manufacturers were required to brand the title of an acquired "lemon" and submit the title to the California Department of Motor Vehicles. If a repurchased "lemon" was to be resold the necessary repairs had to be made and the manufacturer, and its dealers, had to disclose to the prospective buyer or lessee that the vehicle had been repurchased under the California Lemon Law.
In 1992, that part of the Song-Beverly Consumer Warranty Act which pertains to motor vehicles (the California Lemon Law), was renamed the "Tanner Consumer Protection Act" in honor of its author, Assembly Member Sally Tanner. In 1995 the California legislature enacted additional enforcements which provided for the suspension of the licenses of manufacturers who did not adhere to the provisions of the Act.
Prior to 1998, upon the repurchase of a "lemon" the manufacturer could prohibit the disclosure of the terms of the buyback settlement agreement. In 1998 this was changed so that only the financial terms of the settlement are now prohibited from disclosure.
Under AB1290, the definition of "reasonable number of repair attempts" was expanded to apply its protections from 12 months or 12,000 miles whichever comes first, to 18 months or 18,000 miles whichever comes first.
SB 1718 further clarified the term "reasonable number of repair attempts," as it applied to vehicle defects likely to cause death or serious bodily injury, by reducing the number of failed repair attempts from four (4) to two (2). It also expanded lemon law protection to vehicles bought or used primarily by a business so long as the gross vehicle weight is less than 10,000 pounds and five (5) or fewer vehicles are registered in the name of the business.
On January 1, 2008, the California Lemon Law was further extended to provide protection to all military personnel stationed in California, regardless of where the vehicle was purchased.
Senate Bill 234 (SB234), referred to as the California Military Lemon Law, was inspired by a USN lieutenant who had purchased a vehicle while stationed at an out of state military facility. The vehicle exhibited numerous manufacturing defects related to its safety and use, and a manufacturer's approved repair facility was unable to fix the problems within a reasonable number of attempts. The dealer offered to repurchase the vehicle but refused to apply California's statutory usage formula because the vehicle was not purchased in California.
Instead, the dealer demanded a considerably higher usage fee deduction thereby reducing the lieutenant's recovery. Under the California Lemon Law as it existed at that time, the dealer was legally correct. This left many military personnel with no valid recourse and at a disadvantage compared to their civilian counterparts.
As a result of the lawsuit brought on behalf of the USN buyer the California Lemon Law was extended to provide protection to all military personnel stationed in California - regardless of where the vehicle was purchased. The bill was widely supported and passed unanimously in both houses of the California Assembly.
California was the first state in the nation to offer such special protections to active duty military personnel. Many states have since followed California's lead and extended their lemon law statutes to include protection for military members who have purchased out of state "lemon" vehicles.
"As is" Condition: A car sold "as is" is likely sold with no warranty. It does not require the dealer or seller to make repairs (regardless of the vehicle's condition), unless there are other legal concerns such as a misrepresentation or fraud.
Arbitration: Arbitration is an informal legal process that consumers may use to resolve their lemon law case. The decision of the arbitrator is not legally binding on the consumer, but is binding on the manufacturer. This can be a dangerous tool to use because a decision against the consumer may be used by the manufacturer in future legal proceedings. That decision carries the same weight as a decision made in a court of law; even though the arbitrator may have no legal experience or automotive expertise. Arbitration is not a prerequisite in California for filing a lemon law claim or filing a lawsuit against a manufacturer.
California Lemon Law: The California Lemon Law provides that any new or used vehicle covered under the manufacturer's express warranty will be replaced or repurchased by the manufacturer if it is unable to repair a substantial problem within a reasonable number of repair attempts. This includes four (4) repair attempts for substantial manufacturing defects and two (2) repair attempts for safety related problems. A vehicle can also be considered a lemon if it has been out of service at an authorized repair facility to repair substantial manufacturing defects for more than 30 days within the first 18 months or 18,000 miles.
Certified Pre Owned Warranty: Buying or leasing a pre-owned vehicle which has been certified under a manufacturer's certified pre-owned (CPO ) warranty program provides many of the same benefits as buying or leasing a new car.
A manufacturer's CPO certificate extends the mileage and number of years of warranty coverage and also provides a stronger case for repurchase by the manufacturer if the vehicle is later discovered to have a substantial manufacturing defect which cannot be repaired after a reasonable number of attempts.
Demand Letter to Manufacturer: A written demand sent to the manufacturer that describes the motor vehicle, its defects, and the attempts made by a manufacturer's authorized repair facility to repair such defects.
Express Warranty: A written warranty issued by the manufacturer of a new motor vehicle. The express warranty provides certain promises concerning the vehicle's condition, fitness for use, and the manufacturer's obligation to repair the vehicle.
Implied Warranty of Merchantability: A used car or truck purchased after the manufacturer's warranties have expired is usually not covered under the major provisions of the California Lemon Law. A California consumer may still have some legal recourse, however, by using the "implied warranty of merchantability" provisions of the California Lemon Law.
The "implied warranty of merchantability" basically requires that the vehicle is safe to use for the purpose intended. This warranty is imposed on all "consumer goods" sold at retail in California. A limitation on the "implied warranty of merchantability" applies if the used vehicle was sold "as is" and was clearly identified as such.
As long as the vehicle is used for personal use, was sold by a retail dealer, and was not sold "as is", a California consumer may be able to use the implied warranty provisions of the California Lemon Law as the basis for seeking recourse.
Incidental Charges: These are reasonable costs which may have been incurred by the consumer as a result of the vehicle's defect(s). These may include towing charges, car rentals, and other related out of pocket expense. Incidental charges do not include loss of use, loss of income, or personal injury claims.
Magnuson-Moss Warranty Act: A United States federal law enacted in 1975 intended to protect consumers from deceptive warranty practices. Its purpose is to improve the information available to consumers and encourage competition in the marketing of consumer products.
Mediation: Mediation is an informal procedure for dispute resolution which does not require that you hire a lawyer or go through the court system. It is a flexible procedure allowing for more creative settlements. It is often ineffective, however, in getting a manufacturer to agree to a repurchase or reimbursement.
Recall: A recall is when a manufacturer notifies all owners of a specific vehicle year, make and model of a condition or defect that could affect safety or safe operation of the vehicle. Work dictated by a recall is completed at no charge to the vehicle owner.
Reasonable Number of Repair Attempts: Most state laws count "repair attempts" as occasions when you make the vehicle available to a manufacturer's authorized repair facility regardless of whether the dealer verifies the defect or makes an attempt to repair it. In California only two (2) unsuccessful safety related repair attempts is "reasonable." Non-safety related defects require four (4) or more repair attempts of a substantial defect. It is also considered a reasonable number of attempts if the vehicle is 30 days out of service (for any combination of repairs for substantial defects), and within 18 months or 18,000 miles from the date of first delivery.
Repair Order: The Repair Order is the final document prepared by the service department after work has been completed on your vehicle. This document is usually more comprehensive than the original work order and should be retained for your records.
Replacement Vehicle: In California the consumer has the option of electing either a replacement vehicle (typically same year and model with the same or similar accessories), or reimbursement. Unless there is something unusual in the financial aspects of a client's case we usually recommend that our client opt for reimbursement and then use that money toward the purchase or lease of another vehicle.
Safety Defect or Safety Non Conformity: A manufacturing defect which creates the risk of a serious bodily injury or is life threatening if the vehicle continues to be driven. Substantial defects, such as defective steering or defective brake system failures may be examples of safety related defects.
Service Contracts (Extended Warranties): Service contracts and extended warranties are basically insurance policies. The consumer pays an additional amount to the seller or a third party for protection against defects beyond those covered by the manufacturer express and implied warranties. Such contracts are not manufacturer warranties and do not apply to, or extend, your rights under California's Lemon Law statutes. The manufacturer is not required to reimburse you for these contracts if the vehicle is repurchased. (Most service contracts may be canceled if your vehicle is repurchased and you may be entitled to a full or partial refund from the seller of the contract.)
Substantial Non-Conformity: A manufacturing defect that significantly impairs the safety, use, or value of a vehicle. Minor or cosmetic problems are not considered to be substantial defects.
Technical Service Bulletin (TSB): A TSB is a bulletin issued by the manufacturer to its dealers and service departments. It usually pertains to a problem found in vehicles of the same year, make, and type. When bringing your vehicle in for repairs, ask if the manufacturer has issued any TSB's relating to your vehicle for the same or similar problem.
Uniform Commercial Code (UCC): In addition to your rights under state Lemon Laws and the federal Magnuson-Moss Warranty Act, the Uniform Commercial Code is a set of state warranty laws which may additionally be used in a legal action against the manufacturer or dealer.
Used Car Lemon Law: A used car or truck may be covered under the California Lemon Law if some of the manufacturer's original new car warranty is applicable when you purchased the vehicle.
Vehicle Identification Number (VIN): This is a unique code assigned to a vehicle by the manufacturer. Manufacturers may place the VIN tag in different places on the vehicle often on the lower-left corner of the dashboard in front of the steering wheel, on your vehicle's title, and on your registration. The repair facility should include it on each work or service order and each repair order.
Work Order or Service Order: The initial document given to you by the service or technical representative at the dealership when bringing your vehicle in for repairs. Be sure to check the work order for the correct date and odometer mileage, and that your complaints are as you described them and in your own words.