Category Archives: California Lemon Law

WHERE’S MY REPAIR ORDER? ATTEMPTING TO AVOID CALIFORNIA LEMON LAW LIABILITY

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WHERE’S MY REPAIR ORDER? ATTEMPTING TO AVOID CALIFORNIA LEMON LAW LIABILITY

The beauty of proving up a California Lemon Law case is the repairs are documented by repair orders and repair invoices. The repair order is the document that is provided to the consumer when the vehicle is delivered for repair. The repair order should contain the date the vehicle was dropped off, the mileage on the vehicle, a description of the complaint, the estimated cost of repair, etc. The repair invoice is what is provided to the consumer when the vehicle is picked up after repairs are completed. The invoice should contain the date the repairs were completed, the parts that were replaced, whether the parts are new or remanufactured, the cost of the repairs, etc.

Recently, some automobile dealer/repair facilities have been refusing to write up repair orders, and in some instances repair invoices, for consumer concerning warranty repairs. These dealers will check in the vehicle, but will not provide the consumer with the repair order. At the time of pick up, these dealers will not provide the consumer with the invoice. These actions are clear violations of California Business and Professions Code sections 9884.8 and 9884.9.

But why would dealers engage in this clearly illegal activity? The reason is dealers and manufacturers know the life blood of a California Lemon Law case is the vehicle’s documented repair history. If no document exists for a repair, or if the document does not contain the consumer’s complaint with the vehicle, the dealer and manufacturer may challenge whether the repair took place, whether the consumer actually complained of a certain problem with the vehicle and/or whether any repair was performed upon the vehicle. In order to prove a California Lemon Law case, the consumer must prove the vehicle was not made to conform to the warranty within a reasonable number of repair attempts. Therefore, each warranty repair visit is extremely important in proving the “reasonable number of repair attempt” element.

So what should you look out for when taking your vehicle in for warranty repairs? One trick dealers do is tell customers that warranty repairs do not require repair orders and invoices. All vehicle repairs, whether warranty or not, require a repair order and invoice.

Another trick is dealers will keep repair invoices “open” while parts are ordered even though the vehicle is returned to the consumer. In this instance, a repair invoice must be given to the consumer when the vehicle is returned to him or her after the parts are ordered. And a new repair order and invoice must be written up when the parts are in and the vehicle is returned for the part installation.

One common trick is when the dealer does not write up a repair order or invoice when the vehicle is looked at for a short time, maybe in the service drive, and then is quickly returned to the consumer. A repair order and invoice must be provided to the consumer regardless of the amount of time the dealer has the vehicle.

Just remember, when presenting a vehicle for repair, warranty or not, always get a repair order and invoice. If the dealer doesn’t provide you with these documents, ask for them. These documents, or the lack of them, could make or break a California Lemon Law case.

HONDA CIVIC HYBRID OWNER LOSES SMALL CLAIMS APPEAL

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HONDA CIVIC OWNER LOSES SMALL CLAIMS APPEAL

In a recent article I took the position that class action settlements should not include vehicles.  I took this position for several reasons - the unknowing waiver of substantial rights and money damages; lack of counsel to explain complicated settlement notices; etc.  My position arose out of a proposed class action settlement that dealt with the Honda Civic Hybrid and poor fuel mileage.  In the settlement, members of the class would receive nominal monetary compensation or a nominal incentive to purchase another Honda vehicle.  Honda would receive releases of claims for all members of class who did not opt-out of the settlement.

A California woman did opt out of the settlement and sued Honda in small claims court based upon her Honda Civic Hybrid’s poor fuel mileage.  She won a judgment aginst Honda just shy of $10,000.00.  This judgement proved my point that class action lawsuit settlements related to vehicles should not be allowed. 

Honda then appealed the small claims court ruling.  (In California, only a defendant in small claims court may appeal a small claims court decision.)   Honda won the appeal.  (In California a small claims court appeal is heard by one judge in a new hearing.  Attorneys are allowed to represent parties in a small claims appeal, but not in the original small claims case.) 

This appeal decision in no way changes my position regarding the unwiseness of vehicle class action settlements.  The fact that a small claims appeals court ruled in Honda’s favor does not mean that this Honda Civic Hybrid owner or other Honda Civic Hybrid owners have meritless claims.  In fact, the original small claims judge was of the opinion that the plaintiff proved her case and was entitled to damages.

The fact is, the American legal system should not tolerate any legal procedure in which American citizens may unknowingly give up substantial legal rights and large potential monetary damages in exchange for nominal settlement amounts.

For a free personal consultation concerning the California Lemon Law, you may contact David Farrell via phone toll free (866) 360-6886, form or e-mail.

 

FORD 6.4 LITER DIESEL ENGINE – WHERE THERE’S SMOKE THERE’S REGENERATION

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FORD 6.4 LITER DIESEL ENGINE – WHERE THERE’S SMOKE THERE’S REGENERATION

In a previous article I explained many of the problems with Ford Motor Company’s 6.4 liter diesel engine found in Ford’s F-250, F-350, F-450 and F-550 trucks.  A new problem has recently arisen concerning these engines which is dangerous and expensive.  Specifically, the 6.4 liter diesel engine frequently goes into regeneration mode.  When the engine goes into this mode it frequently spews out excessive amounts of exhaust smoke.  This smoke creates extremely dangerous driving conditions for those drivers following these defective trucks.  It’s hard to see if your vehicle is engulfed in thick exhaust smoke.

The second issue related to this regeneration mode is that when the vehicle is in this mode, fuel mileage drops dramatically.  With diesel prices what they are these days, this drop in fuel mileage can get very expensive, very fast.  Ford is aware of these regeneration issues, but is either unable or unwilling to fix these problems.

If you purchased your Ford F-250, F-350, F-450 or F-550 in California and you are having problems with the 6.4 liter Diesel engine, you could have a valid California Lemon Law claim that may entitle you to compensation.  Give me a call and I will be happy to speak with you. 

For a free personal consultation concerning the California Lemon Law, you may contact David Farrell via phone toll free (866) 360-6886, form or e-mail.

 

 

 

California Lemon Law – The 30 Day Rule

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CALIFORNIA LEMON LAW – THE 30 DAY RULE

One aspect of the California Lemon Law that is sometimes overlooked is the fact that warrantors must complete warranty repairs within thirty days of the presentation of the vehicle or consumer good to an authorized repair facility for warranty repairs.  (30 day rule; Civ. Code section 1793.2(b).)  Recently, new proposed jury instructions were submitted by an attorney to the California Judicial Counsel related to the 30 day rule.  These proposed jury instruction  sought to include in CACI (the official California civil jury instructions) specific jury instructions related to the 30 day rule.  Although the attorney had a good general idea to add 30 day rule jury instructions to CACI, the instructions were flawed.  Specifically, the original proposed jury instructions required proof that the problem leading to the vehicle or consumer good being out-of-service more than 30 days substantially impaired the use, value or safety of the vehicle or consumer good to the buyer.  This interpretation of the Lemon Law 30 day rule was flawed.  The 30 day rule does not require  proof of substantial impairment.

Fortunately, before proposed CACI jury instructions become official, commentary on the proposed jury instructions is allowed.  In my commentary, I argued that the proposed Lemon Law 30 day rule jury instruction was incorrect as no proof of substantial impairment was needed to establish a violation of the 30 day rule.  As a result of my and others commentaries on the California Lemon Law 30 day rule, the CACI jury instruction was changed to eliminate proof of substantial impairment.

So if a vehicle or consumer product is delivered for a warranty repair, that repair must be completed within 30 days regardless of the severity of the problem.  If the repairs are not completed within 30 days, the consumer may be entitled to monetary damages under the California Lemon Law.

For a free personal consultation concerning the California Lemon Law, you may contact David Farrell via phone toll free (866) 360-6886, form or e-mail.

 

 

 

 

 

HONDA LOSES HYBRID SMALL CLAIMS CASE

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HONDA LOSES HYBRID SMALL CLAIMS CASE

Recently, I wrote an article questioning whether automobile class action lawsuits are good for the consumer.  The article related to a proposed class action settlement concerning Honda Hybrid vehicles.  In a nutshell, I argued that class action lawsuit settlements related to vehicles in which class members give up substantial potential damage claims for minimal damages should not happen.

A recent small claims court decision proves my point.  A woman opted out of the Honda class action settlement and sued Honda on her own in small claims court.  She won the case and the court awarded her just shy of $10,000.00 in damages from Honda.  Had she stayed in the class action settlement, she would have received approximately $100.00 to $200.00.  So I ask the questions – Who does the class action settlement benefit?  Honda? Class Counsel? Class Representative?  Given the amount of the settlement for the class members and the potential damages for individual claims (as evidenced by the small claims award), it is difficult to argue the settlement benefits class members.

Now Honda will undoubtedly appeal the small claims decision.  Honda will be allowed to have counsel represent it in the small claims appeal.  But the fact that a judge ruled in a consumer’s favor on the very claim that is subject to the class action settlement, evidences the negative aspect of class action settlements dealing with automobiles.

It will be interesting to see the outcome of the appeal.

For a free personal consultation concerning the California Lemon Law, you may contact David Farrell via phone toll free (866) 360-6886, form or e-mail.

NO CAR? DON’T WORRY. YOU MAY STILL HAVE A CALIFORNIA LEMON LAW CASE.

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NO CAR? DON’T WORRY. YOU MAY STILL HAVE A CALIFORNIA LEMON LAW CASE.

Let’s say you have a car that has problems and you decide to get rid of it. Can you bring a California Lemon Law claim even though you no longer have the car? Yes you can! In Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187 the court held that under the California Lemon Law one does not need to own a vehicle in order to be entitled to restitution damages.  This case is really a win for California consumers.  In some states, the consumer is required have a vehicle in order to be entitled to lemon law damages.  In these states, manufacturers attempt to “wait out” consumers hoping the problems with their vehicles will force the consumers to get rid of their lemon vehicles before their cases are resolved.  With no vehicle, there will be no lemon law case. Fortunately, in California, consumers are in control of their lemon law cases, not manufacturers.  So if you don’t still have your lemon car, you may still have a valid California Lemon Law case.

For a free personal consultation concerning the California Lemon Law, you may contact David Farrell via phone toll free (866) 360-6886, form or e-mail.

WHEN GROSS VEHICLE WEIGHT MEANS GROSS VEHICLE WEIGHT

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When Gross Vehicle Weight Means Gross Vehicle Weight

As a practicing California Lemon Law attorney for over 20 years, I have heard a lot of legal and factual arguments.  After all, argument is the business of a litigation attorney.  But sometimes a side takes a legal position that, well, doesn’t make much sense.  Of course I have never done so (sarcasm).

One such nonsensical legal position was taken by Ford Motor Company regarding vehicle weight.  The weight of a vehicle is significant under the California Lemon Law when applying the Lemon Law to a business use vehicle.  The Ca Lemon Law will apply to a business use vehicle if, among other things, its gross vehicle weight (GVW) is less than 10,000 pounds.

Now for vehicles there are typically two weight categories – GVW and gross vehicle weight rating (GVWR).  GVW means the actual weight of the vehicle and GVWR means the entire weight the vehicle may haul or tow including the weight of the vehicle.  So, obviously, these two terms are different.  A vehicle may actually weigh less than 10,000 pounds (GVW) but be capable of towing or hauling, plus adding the weight of the vehicle, well in excess of 10,000 pounds (GVWR).

For several years Ford argued that GVW actually meant GVWR.  So, according to Ford, if a business use vehicle’s GVWR was in excess of 10,000 pounds the California Lemon Law would not apply regardless of the vehicle’s actual GVW.  Ford took this position due to the fact that its F-Series (F250, F350, F450, F550) 6.0 and 6.4 liter diesel engine trucks were, and are, extremely problematic.  Many of these F-Series diesel engine trucks are used for business purposes.  So Ford’s weight approach was designed to eliminate these business use vehicle Lemon Law claims because the GVWR of all of these vehicles is well in excess of 10,000 pounds.

Fortunately, Ford’s weight approach was shot down in Joyce v. Ford Motor Company (2011)  198 Cal.App.4th 1478.  In Joyce, the court held that GVW and GVWR do not mean the same thing.  (What a shock!)  The court also held that GVW means the total overall weight that the vehicle weighs.

So now that this issue is resolved, I’ll have to wait for the next nonsensical legal or factual argument, unless I make one myself first.

For a free personal consultation concerning the California Lemon Law, you may contact David Farrell via phone toll free (866) 360-6886, form or e-mail.  

 

FORD SYNC SYSTEM IS OUT OF SYNC

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Ford Sync System is Out of Sync

Ford is having massive problems with its Sync system found in newer Ford vehicles.  The Sync system has voice activation capabilities and controls phone operations, navigation, entertainment, etc.  These problems include, but are not limited to – navigation system won’t work, dropped phone calls, system won’t pair with phone, screen goes blank, voice commands do not work, etc.  Ford is fully aware of the problems with the Sync system.  In an effort to address the problems, Ford has updated the Sync system software. The updates, however, have for the most part been ineffective.  If you are having problems with your Ford Sync system, you may have a California Lemon Law case.

For a free personal consultation concerning the California Lemon Law, you may contact David J. Farrell via phone toll free (866) 360-6886, form or e-mail.  

ARE AUTOMOBILE CLASS ACTION LAWSUITS GOOD FOR THE CONSUMER?

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ARE AUTOMOBILE CLASS ACTION LAWSUITS GOOD FOR THE CONSUMER?

At one time or another, most of us have been involved in a class action lawsuit.  You know the drill. You receive a legal notice in the mail that you are a member of a class that is involved in a lawsuit. If you take the time to read the notice, you will find out after several paragraphs of legal mumbo-jumbo (it’s usually very interesting reading if you like torture) that you are entitled to a coupon or $1.00 or some other nominal amount. Further reading will demonstrate that the class counsel (those attorneys representing you and the class) will receive millions of $$$ in attorney’s fees. If you are still awake after reading that much of the notice, you will finally find out that you are forever bound by the settlement and may not pursue a claim on your own unless you opt out of the class in a timely manner. In most class action lawsuits the individual claims are nominal. Therefore, the consumer is not likely to take the time to pursue a claim on his/her own. And if, in these nominal cases, one fails to read the class action notice, or does not understand the language of the notice, in reality it really doesn’t matter that much because there is not a lot to lose.

But what about a class action lawsuit that involves automobiles and the waiver of substantial legal rights if one is a member of the class? An example (Lockabey v. American Honda Motor Co., Inc.) is currently hashing itself out in a San Diego, California Superior Court. In this class action lawsuit, certain owners of several model years of Honda Civic Hybrids have been named members of a class related to fuel mileage and possibly other issues concerning these vehicle. For those class members who remain in the class, the settlement remedies are dubious to say the lest. These remedies include cash payments of $100.00, rebates of $500.00 for those who are dying to purchase another Honda to replace the defective one, etc. And if one remains in the class, he/she will be forever legally barred from pursuing claims related to the settlement.

The notice for this class action lawsuit is similar for other nominal damage class action lawsuits. But the stakes and potential loss for class members are much, much higher.  Individual members of this class action lawsuit could have thousands of $$$ in personal claims under several legal theories – California Lemon Law; False advertising; Federal Lemon Law; California Consumer Legal Remedies Act; etc.

So is it appropriate to bound automobile owners in a class action lawsuit when individual members may be unknowingly waiving substantial damage claims? I think not for several reasons. First, a class action notice as in the San Diego Honda case does not provide adequate legal notice to the class members as to what rights they may be waiving.  Second, the class notice may not even be read by the class member for several reasons including, but not limited – lost, thrown away, never received, etc. Third, the general members of the class are not represented by counsel. Before any American consumer gives up substantial legal rights in a class action setting, at the very least that consumer should be given access to free counsel paid for by class counsel and/or the defendant(s) to advise the consumer what specific legal rights are being released.

But perhaps the best solution for consumers in class action lawsuits such as the San Diego Honda case is to require class members to opt-in to the lawsuit rather than opt-out. In other words, the consumer would have to take a specific, knowing action in order to be bound by the terms of the class action settlement. Then there would be no doubt that those that opt-in will be ready, willing and able to accept the consequences of being a member of the class.

If you would like more information concerning the California Lemon Law, you may contact David J. Farrell via phone toll free (866) 360-6886, form or e-mail. You may also fax documents to Mr. Farrell at (949) 305-7775.  Mr. Farrell will be happy to provide you with a free consultation.

REPAIR DOCUMENTS AND THE CALIFORNIA LEMON LAW

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REPAIR DOCUMENTS AND THE CALIFORNIA LEMON LAW

One advantage that consumers have in California Lemon Law cases is that usually the complaints about, and the repairs to, the vehicle are documented by way of repair orders and repair invoices. Continue reading →