|
1793.2.
(a) Every manufacturer of consumer goods sold in this state and
for which the manufacturer has made an express warranty shall:
(1)
(A) Maintain in this state sufficient service and repair
facilities reasonably close to all areas where its consumer
goods are sold to carry out the terms of those warranties or
designate and authorize in this state as service and repair
facilities independent repair or service facilities reasonably
close to all areas where its consumer goods are sold to carry
out the terms of the warranties.
(B)
As a means of complying with this paragraph, a manufacturer may
enter into warranty service contracts with independent service
and repair facilities. The warranty service contracts may
provide for a fixed schedule of rates to be charged for warranty
service or warranty repair work. However, the rates fixed by
those contracts shall be in conformity with the requirements of
subdivision (c) of Section 1793.3. The rates established
pursuant to subdivision (c) of Section 1793.3, between the
manufacturer and the independent service and repair facility,
shall not preclude a good faith discount which is reasonably
related to reduced credit and general overhead cost factors
arising from the manufacturer's payment of warranty charges
direct to the independent service and repair facility. The
warranty service contracts authorized by this paragraph shall
not be executed to cover a period of time in excess of one year,
and may be renewed only by a separate, new contract or letter of
agreement between the manufacturer and the independent service
and repair facility.
(2)
In the event of a failure to comply with paragraph (1) of this
subdivision, be subject to Section 1793.5.
(3)
Make available to authorized service and repair facilities
sufficient service literature and replacement parts to effect
repairs during the express warranty period.
(b)
Where those service and repair facilities are maintained in this
state and service or repair of the goods is necessary because
they do not conform with the applicable express warranties,
service and repair shall be commenced within a reasonable time
by the manufacturer or its representative in this state. Unless
the buyer agrees in writing to the contrary, the goods shall be
serviced or repaired so as to conform to the applicable
warranties within 30 days. Delay caused by conditions beyond the
control of the manufacturer or his representatives shall serve
to extend this 30-day requirement. Where delay arises,
conforming goods shall be tendered as soon as possible following
termination of the condition giving rise to the delay.
(c)
The buyer shall deliver nonconforming goods to the
manufacturer's service and repair facility within this state,
unless, due to reasons of size and weight, or method of
attachment, or method of installation, or nature of the
nonconformity, delivery cannot reasonably be accomplished. If
the buyer cannot return the nonconforming goods for any of these
reasons, he or she shall notify the manufacturer or its nearest
service and repair facility within the state. Written notice of
nonconformity to the manufacturer or its service and repair
facility shall constitute return of the goods for purposes of
this section. Upon receipt of that notice of nonconformity, the
manufacturer shall, at its option, service or repair the goods
at the buyer's residence, or pick up the goods for service and
repair, or arrange for transporting the goods to its service and
repair facility. All reasonable costs of transporting the goods
when a buyer cannot return them for any of the above reasons
shall be at the manufacturer's expense. The reasonable costs of
transporting nonconforming goods after delivery to the service
and repair facility until return of the goods to the buyer shall
be at the manufacturer's expense.
(d)
(1) Except as provided in paragraph (2), if the manufacturer or
its representative in this state does not service or repair the
goods to conform to the applicable express warranties after a
reasonable number of attempts, the manufacturer shall either
replace the goods or reimburse the buyer in an amount equal to
the purchase price paid by the buyer, less that amount directly
attributable to use by the buyer prior to the discovery of the
nonconformity.
(2)
If the manufacturer or its representative in this state is
unable to service or repair a new motor vehicle, as that term is
defined in paragraph (2) of subdivision (e) of Section 1793.22,
to conform to the applicable express warranties after a
reasonable number of attempts, the manufacturer shall either
promptly replace the new motor vehicle in accordance with
subparagraph (A) or promptly make restitution to the buyer in
accordance with subparagraph (B). However, the buyer shall be
free to elect restitution in lieu of replacement, and in no
event shall the buyer be required by the manufacturer to accept
a replacement vehicle.
(A)
In the case of replacement, the manufacturer shall replace the
buyer's vehicle with a new motor vehicle substantially identical
to the vehicle replaced. The replacement vehicle shall be
accompanied by all express and implied warranties that normally
accompany new motor vehicles of that specific kind. The
manufacturer also shall pay for, or to, the buyer the amount of
any sales or use tax, license fees, registration fees, and other
official fees which the buyer is obligated to pay in connection
with the replacement, plus any incidental damages to which the
buyer is entitled under Section 1794, including, but not limited
to, reasonable repair, towing, and rental car costs actually
incurred by the buyer.
(B)
In the case of restitution, the manufacturer shall make
restitution in an amount equal to the actual price paid or
payable by the buyer, including any charges for transportation
and manufacturer-installed options, but excluding non-manufacturer
items installed by a dealer or the buyer, and including any
collateral charges such as sales tax, license fees, registration
fees, and other official fees, plus any incidental damages to
which the buyer is entitled under Section 1794, including, but
not limited to, reasonable repair, towing, and rental car costs
actually incurred by the buyer.
(C)
When the manufacturer replaces the new motor vehicle pursuant to
subparagraph (A), the buyer shall only be liable to pay the
manufacturer an amount directly attributable to use by the buyer
of the replaced vehicle prior to the time the buyer first
delivered the vehicle to the manufacturer or distributor, or its
authorized service and repair facility for correction of the
problem that gave rise to the nonconformity. When restitution is
made pursuant to subparagraph (B), the amount to be paid by the
manufacturer to the buyer may be reduced by the manufacturer by
that amount directly attributable to use by the buyer prior to
the time the buyer first delivered the vehicle to the
manufacturer or distributor, or its authorized service and
repair facility for correction of the problem that gave rise to
the nonconformity. The amount directly attributable to use by
the buyer shall be determined by multiplying the actual price of
the new motor vehicle paid or payable by the buyer, including
any charges for transportation and manufacturer-installed
options, by a fraction having as its denominator 120,000 and
having as its numerator the number of miles traveled by the new
motor vehicle prior to the time the buyer first delivered the
vehicle to the manufacturer or distributor, or its authorized
service and repair facility for correction of the problem that
gave rise to the nonconformity. Nothing in this paragraph shall
in any way limit the rights or remedies available to the buyer
under any other law.
1793.22
(a)This
section shall be known and may be cited as the Tanner Consumer
Protection Act.
(b)
It shall be presumed that a reasonable number of attempts have
been made to conform a new motor vehicle to the applicable
express warranties if, within 18 months from delivery to the
buyer or 18,000 miles on the odometer of the vehicle, whichever
occurs first, one or more of the following occurs:
(1)
The same nonconformity results in a condition that is likely to
cause death or serious bodily injury if the vehicle is driven
and the nonconformity has been subject to repair two or more
times by the manufacturer or its agents, and the buyer or lessee
has at least once directly notified the manufacturer of the need
for the repair of the nonconformity.
(2)
The same nonconformity has been subject to repair four or more
times by the manufacturer or its agents and the buyer has at
least once directly notified the manufacturer of the need for
the repair of the nonconformity.
(3)
The vehicle is out of service by reason of repair of
nonconformities by the manufacturer or its agents for a
cumulative total of more than 30 calendar days since delivery of
the vehicle to the buyer. The 30-day limit shall be extended
only if repairs cannot be performed due to conditions beyond the
control of the manufacturer or its agents. The buyer shall be
required to directly notify the manufacturer pursuant to
paragraphs (1) and (2) only if the manufacturer has clearly and
conspicuously disclosed to the buyer, with the warranty or the
owner's manual, the provisions of this section and that of
subdivision (d) of Section 1793.2, including the requirement
that the buyer must notify the manufacturer directly pursuant to
paragraphs (1) and (2). The notification, if required, shall be
sent to the address, if any, specified clearly and conspicuously
by the manufacturer in the warranty or owner's manual. This
presumption shall be a rebuttable presumption affecting the
burden of proof, and it may be asserted by the buyer in any
civil action, including an action in small claims court, or
other formal or informal proceeding.
(c)
If a qualified third-party dispute resolution process exists,
and the buyer receives timely notification in writing of the
availability of that qualified third-party dispute resolution
process with a description of its operation and effect, the
presumption in subdivision (b) may not be asserted by the buyer
until after the buyer has initially resorted to the qualified
third-party dispute resolution process as required in
subdivision (d). Notification of the availability of the
qualified third-party dispute resolution process is not timely
if the buyer suffers any prejudice resulting from any delay in
giving the notification. If a qualified third-party dispute
resolution process does not exist, or if the buyer is
dissatisfied with that third-party decision, or if the
manufacturer or its agent neglects to promptly fulfill the terms
of the qualified third-party dispute resolution process decision
after the decision is accepted by the buyer, the buyer may
assert the presumption provided in subdivision (b) in an action
to enforce the buyer's rights under subdivision (d) of Section
1793.2. The findings and decision of a qualified third-party
dispute resolution process shall be admissible in evidence in
the action without further foundation. Any period of limitation
of actions under any federal or California laws with respect to
any person shall be extended for a period equal to the number of
days between the date a complaint is filed with a third-party
dispute resolution process and the date of its decision or the
date before which the manufacturer or its agent is required by
the decision to fulfill its terms if the decision is accepted by
the buyer, whichever occurs later.
(d)A
qualified third-party dispute resolution process shall be one
that does all of the following:
(1)
Complies with the minimum requirements of the Federal Trade
Commission for informal dispute settlement procedures as set
forth in Part 703 of Title 16 of the Code of Federal
Regulations, as those regulations read on January 1, 1987.
(2)
Renders decisions which are binding on the manufacturer if the
buyer elects to accept the decision.
(3)
Prescribes a reasonable time, not to exceed 30 days after the
decision is accepted by the buyer, within which the manufacturer
or its agent must fulfill the terms of its decisions.
(4)
Provides arbitrators who are assigned to decide disputes with
copies of, and instruction in, the provisions of the Federal
Trade Commission's regulations in Part 703 of Title 16 of the
Code of Federal Regulations as those regulations read on January
1, 1987, Division 2 (commencing with Section 2101) of the
Commercial Code, and this chapter.
(5)Requires
the manufacturer, when the process orders, under the terms of
this chapter, either that the nonconforming motor vehicle be
replaced if the buyer consents to this remedy or that
restitution be made to the buyer, to replace the motor vehicle
or make restitution in accordance with paragraph (2) of
subdivision (d) of Section 1793.2.
(6)Provides,
at the request of the arbitrator or a majority of the
arbitration panel, for an inspection and written report on the
condition of a nonconforming motor vehicle, at no cost to the
buyer, by an automobile expert who is independent of the
manufacturer.
(7)Takes
into account, in rendering decisions, all legal and equitable
factors, including, but not limited to, the written warranty,
the rights and remedies conferred in regulations of the Federal
Trade Commission contained in Part 703 of Title 16 of the Code
of Federal Regulations as those regulations read on January 1,
1987, Division 2 (commencing with Section 2101) of the
Commercial Code, this chapter, and any other equitable
considerations appropriate in the circumstances. Nothing in this
chapter requires that, to be certified as a qualified
third-party dispute resolution process pursuant to this section,
decisions of the process must consider or provide remedies in
the form of awards of punitive damages or multiple damages,
under subdivision (c) of Section 1794, or of attorneys' fees
under subdivision (d) of Section 1794, or of consequential
damages other than as provided in subdivisions (a) and(b)of
Section 1794, including, but not limited to, reasonable repair,
towing, and rental car costs actually incurred by the buyer.
(8)Requires
that no arbitrator deciding a dispute may be a party to the
dispute and that no other person, including an employee, agent,
or dealer for the manufacturer, may be allowed to participate
substantively in the merits of any dispute with the arbitrator
unless the buyer is allowed to participate also. Nothing in this
subdivision prohibits any member of an arbitration board from
deciding a dispute.
(9)Obtains
and maintains certification by the Department of Consumer
Affairs pursuant to Chapter 9 (commencing with Section 472) of
Division 1 of the Business and Professions Code.
(e) For the purposes of subdivision (d) of Section 1793.2 and
this section, the following terms have the following meanings:
(1)"Nonconformity"
means a nonconformity which substantially impairs the use,
value, or safety of the new motor vehicle to the buyer or
lessee.
(2)"New
motor vehicle" means a new motor vehicle that is bought or
used primarily for personal, family, or household purposes.
"New motor vehicle" also means a new motor vehicle
with a gross vehicle weight under 10,000 pounds that is bought
or used primarily for business purposes by a person, including a
partnership, limited liability company, corporation,
association, or any other legal entity, to which not more than
five motor vehicles are registered in this state. "New
motor vehicle" includes the chassis, chassis cab, and that
portion of a motor home devoted to its propulsion, but does not
include any portion designed, used, or maintained primarily for
human habitation, a dealer-owned vehicle and a
"demonstrator" or other motor vehicle sold with a
manufacturer's new car warranty but does not include a
motorcycle or a motor vehicle which is not registered under the
Vehicle Code because it is to be operated or used exclusively
off the highways. A demonstrator is a vehicle assigned by a
dealer for the purpose of demonstrating qualities and
characteristics common to vehicles of the same or similar model
and type.
(3)"Motor
home" means a vehicular unit built on, or permanently
attached to, a self-propelled motor vehicle chassis, chassis
cab, or van, which becomes an integral part of the completed
vehicle, designed for human habitation for recreational or
emergency occupancy.
(f)
(1)
Except as provided in paragraph (2), no person shall sell,
either at wholesale or retail, lease, or transfer a motor
vehicle transferred by a buyer or lessee to a manufacturer
pursuant to paragraph (2) of subdivision (d) of Section 1793.2
or a similar statute of any other state, unless the nature of
the nonconformity experienced by the original buyer or lessee is
clearly and conspicuously disclosed to the prospective buyer,
lessee, or transferee, the nonconformity is corrected, and the
manufacturer warrants to the new buyer, lessee, or transferee in
writing for a period of one year that the motor vehicle is free
of that nonconformity.
(2)
Except for the requirement that the nature of the nonconformity
be disclosed to the transferee, paragraph (1) does not apply to
the transfer of a motor vehicle to an educational institution if
the purpose of the transfer is to make the motor vehicle
available for use in automotive repair courses.
[EFFECTIVE 1/1/2001. Amended September 26, 2000 (Bill Number: SB
1718) (Chapter 679).] [Previously Amended September 21, 1999
(Bill Number: AB 1290) (Chapter 448).] [Previously Amended July
12, 1999 (Bill Number: SB 966) (Chapter 83).]
1794.
(a)
Any buyer of consumer goods who is damaged by a failure to
comply with any obligation under this chapter or under an
implied or express warranty or service contract may bring an
action for the recovery of damages and other legal and equitable
relief.
(b)
The measure of the buyer's damages in an action under this
section shall include the rights of replacement or reimbursement
as set forth in subdivision (d) of Section 1793.2, and the
following:
(1)
Where the buyer has rightfully rejected or justifiably revoked
acceptance of the goods or has exercised any right to cancel the
sale, Sections 2711, 2712, and 2713 of the Commercial Code shall
apply.
(2)
Where the buyer has accepted the goods, Sections 2714 and 2715
of the Commercial Code shall apply, and the measure of damages
shall include the cost of repairs necessary to make the goods
conform.
(c)
If the buyer establishes that the failure to comply was willful,
the judgment may include, in addition to the amounts recovered
under subdivision (a), a civil penalty which shall not exceed
two times the amount of actual damages. This subdivision shall
not apply in any class action under Section 382 of the Code of
Civil Procedure or under Section 1781, or with respect to a
claim based solely on a breach of an implied warranty.
(d)
If the buyer prevails in an action under this section, the buyer
shall be allowed by the court to recover as part of the judgment
a sum equal to the aggregate amount of costs and expenses,
including attorney's fees based on actual time expended,
determined by the court to have been reasonably incurred by the
buyer in connection with the commencement and prosecution of
such action.
(e)
(1) Except as otherwise provided in this subdivision, if the
buyer establishes a violation of paragraph (2) of subdivision
(d) of Section 1793.2, the buyer shall recover damages and
reasonable attorney's fees and costs, and may recover a civil
penalty of up to two times the amount of damages.
(2)
If the manufacturer maintains a qualified third-party dispute
resolution process which substantially complies with Section
1793.22, the manufacturer shall not be liable for any civil
penalty pursuant to this subdivision.
(3)
After the occurrence of the events giving rise to the
presumption established in subdivision (b) of Section 1793.22,
the buyer may serve upon the manufacturer a written notice
requesting that the manufacturer comply with paragraph (2) of
subdivision (d) of Section 1793.2. If the buyer fails to serve
the notice, the manufacturer shall not be liable for a civil
penalty pursuant to this subdivision.
(4)
If the buyer serves the notice described in paragraph (3) and
the manufacturer complies with paragraph (2) of subdivision (d)
of Section 1793.2 within 30 days of the service of that notice,
the manufacturer shall not be liable for a civil penalty
pursuant to this subdivision.
(5)
If the buyer recovers a civil penalty under subdivision (c), the
buyer may not also recover a civil penalty under this
subdivision for the same violation. |
