Song-Beverly Consumer Warranty Act “lemon law” cases are causes of actions whereby:

A buyer of consumer goods that are damaged by breach of the express or implied warranties may bring an action to recover damages pursuant to the Song-Beverly Act.

Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 121.

Purpose of the Act

The Act is designed to give consumers broader protection for breach of warranty than buyers would have under the common law or the California Uniform Commercial Code. Jiagbogu v. Mercedes–Benz USA (2004) 118 Cal.App.4th 1235, 1241. The Lemon Law is a “strongly pro-consumer” law aimed at protecting, among others, new car buyers. Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990.

The Song-Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty. Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 121.

It requires a manufacturer to replace “consumer goods” or reimburse the buyer if the manufacturer or its representative is unable to repair the consumer good after a reasonable number of attempts. Civ. Code, § 1793.2(d)(1).

Necessary Elements

A plaintiff pursuing an action under the Act has the burden to prove that:

1. the product had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the product,
2. the product was presented to an authorized representative of the manufacturer for repair, and
3. the manufacturer or its representative did not repair the nonconformity after a reasonable number of repair attempts.

Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799 citing Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.

“The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum there must be more than one opportunity to fix the nonconformity.” Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 799. For new motor vehicles there is a presumption of failure to conform to warranty within a reasonable number of attempts after four repairs of the same nonconformity and notification to the manufacturer of the need for repair. Civ. Code, § 1793.22(b)(2).

Note, the plain language of this statute imposes a duty to brand the vehicle as a “lemon law buyback” only on the manufacturer.

Reasonableness for Repairs

The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum there must be more than one opportunity to fix the nonconformity. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799.

For new motor vehicles there is a presumption of failure to conform to warranty within a reasonable number of attempts after four repairs of the same nonconformity and notification to the manufacturer of the need for repair. Civil Code § 1793.22(b)(2).

Damages and Restitution

The replacement/restitution remedy is available only for breach of an express warranty. Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1262.

Damages for breach of an implied warranty is governed by Civil Code section 1791.1(d) which provides, “Any buyer of consumer goods injured by a breach of the implied warranty of merchantability... has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the [California Uniform] Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply.” When the buyer accepts the goods, damages for breach of the implied warranty include damages available under California Uniform Commercial Code sections 2714 and 2715. Civil Code § 1794(b)(2).

Damages for breach of an express warranty on a new automobile is governed by Civil Code section 1793.2. If the manufacturer is unable to service or repair a vehicle to conform to an express warranty after a reasonable number of attempts, the buyer may seek replacement or restitution. Civil Code § 1793.2(d)(2).

Restitution shall be “in an amount equal to the actual price paid or payable by the buyer....” Civil Code § 1793.2(d)(2)(B).

In the automobile case the “actual price paid or payable” may be reduced by any amount attributable to the buyer’s use prior to the first time the buyer brought the car in for repair. Civil Code § 1793.2(d)(2)(C) (formula for calculating the “amount directly attributable to use by the buyer”).

In addition, the buyer is entitled to incidental or consequential damages (including attorney’s fees) as defined in California Uniform Commercial Code section 2715. Civil Code § 1794; Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 187-188.

Attorney’s Fees and Costs

In a lemon law action, costs and expenses, including attorney’s fees, may be recovered by a prevailing buyer under the Song-Beverly Act. See Civ. Code, § 1794(d); Wohlgemuth v. Caterpiller, Inc. (2012) 207 Cal.App.4th 1252, 1262.