The Lemon Law Blog

The California lemon law covers defects that impair the use, value or safety of a vehicle. This is called the “substantial impairment” rule. Only truly trivial matters fall outside the scope of the lemon law.

To our surprise, some manufacturers try to tell car owners that defective windshield wipers are not worth worrying about and that a failure to fix them is not covered under the lemon law. Nothing could be further from the truth. Are they confusing “little” with “trivial?” If you live anywhere but the Atacama Desert, windshield wipers are among the most important safety devices on any passenger vehicle.

Just as November weather is upon us, the National Highway Traffic Safety Administration has issued a recall of Chrysler Jeep 2008 model SUVs for defective windshield wiper motors. NHTSA Campaign ID Number : 10V550 If you get this notice, respond right away.

The windshield wiper was first patented by a female inventor named Mary Anderson. During a winter visit to New York City in 1902, she noticed that the trolley car operator drove with the front window open because of difficulty keeping the windshield clear of blinding sleet. Bundling her own overcoat more tightly, she thought of a mechanism to control the blade from inside of the trolley and keep the draught out. She had a model made of her design and patented it shortly thereafter. In those days a patent was good for just 17 years, and the auto industry took it up as soon as it expired.

Most automobiles use two synchronized radial type arms, while some SUVs and station wagons use one pantograph arm. The intermittent windshield wiper was invented by Bob Kearns. His battle with Ford Motor Company was chronicled in the award-winning movie, “Flash of Genius.”

Although there is a range of acceptable design, properly functioning windshield wipers are standard safety features on passenger vehicles. Don’t let any car dealer tell you otherwise.

Kemnitzer Barron & Krieg attorneys are working on cases for clients with BMWs that have shut off in traffic. Investigation shows the following model BMWs may be subject to the defect that has caused our clients cars to stall: BMW 135i, 335i, 335xi, 535i, 535xi, X5 sdrive35i, X6 sdrive35i, Z4 sdrive35i. It appears to involve essentially all models with BMW’s 300hp twin turbo engine. The fuel pumps in the cars suffering from this defect cannot pressurize the fuel reliably at the pressure required for the twin turbos. Once the pump fails, the engine does not get the amount of fuel required and the car loses power. At best the affected cars will take extra time to start and run roughly, sometimes the cars will run with limited power, while at worst they shut off suddenly. We have reports of these BMWs stalling suddenly at high speeds, even at 70 mph on a Los Angeles freeway. Imagine: the car shakes violently and then loses all power. When a car loses all power it soon thereafter loses power steering, and hydraulic brake assist. This can make the car difficult to stop and difficult to maneuver. Crashes have been reported to the NHTSA as resulting from the fuel pump failure in these BMWs. BMW in its own report to the National Highway Transportation Agency noted that it was aware of the problem back in 2008. BMW has only now issued a recall on all the affected cars, even though it noted in its report to NHTSA in 2008 that loss of all power could occur as a result of the fuel pump failure and that the steering and braking of the affected car would be compromised. If you own one of these cars, take care to look for the early indications of a possible failure. If the car takes longer to start then it has in the past, the check engine light comes on, or the car is running roughly, go immediately to your warranty repair center. If this problem has been worked on and reoccurred, you may have a claim to have your car repurchased by BMW under California’s lemon law, the Song-Beverly Act. Just because a recall has been issued does not mean that the Lemon Law does not apply, especially if BMW has had a number of attempts to solve the problem and been unable to do so. Regardless of what you do, ignoring the problem will not make it go away, and may lead to the ultimate nightmare.

The National Consumer Law Center just launched a new website. Check it out here. The nonprofit center, headquartered in Boston, has been a premier source of assistance for consumers, legal services and consumer lawyers for decades.

Its new website provides information on NCLC's recent reports, numerous publications and current initiatives. Among other things, NCLC publishes reports on scams and predatory trends in consumer transactions, manuals and treatises on a wide variety of legal topics affecting consumers, as well as other books for lawyers and the public alike. NCLC is the publisher of "Return to Sender - Getting a Replacement for Your Lemon Car" by Nancy Barron.

In addition to its publications, NCLC funds research, legal conferences and consumer education programs on a wide range of important consumer topics -- from automotive fraud and warranty law, to financial abuse of the elderly, energy policy, student loans, and predatory lending.

Kemnitzer, Barron & Krieg is actively involved in the work of NCLC. Bryan Kemnitzer is a member of the partner's council and Nancy Barron currently serves on its board of directors.

The Obama Administration issued a report today entitled A Look Back at GM, Chrysler and the American Auto Industry. Actually, it is a short look back through the last tumultuous twelve months, to announce the unexpectedly rapid progress that General Motors and Chrysler are making toward repayment of their federal bailout money. "GM’s early repayment of its $6.7 billion loan leaves the remaining U.S. government stake in the company at $2.1 billion in preferred stock and 60.8% of the common equity," the notice reports. And, while the announcement does not say Chrysler has fully repaid its government loan, the news that “Chrysler Financial has already fully repaid (with interest) the $1.5 billion TARP loan that it received to support auto financing” is encouraging.You can read the entire report here. While Chrysler's relatively rosy outlook and General Motors' early repayment of billions will come as good news to taxpayers, their corporate success is small comfort to consumers whose warranty rights were trampled in the messy restructuring of both companies. The car buying public remains cautious. Like the manufacturers themselves, consumers are eager to pay off debts before going on a spending spree. Whether these icons of American industry will recover market share once pent-up demand spills over and credit eases will depend on whether improvement in vehicle safety and design follows the companies' financial improvement.

This week, we received notification from NHTSA's Office of Defects and Investigation concerning Ricon wheelchair lifts used in Diamond Coaches. These vehicles are small buses used to transport senior citizens and others who are unable to drive. The defect notices involve nonconformities in the restraint belt and lift software which could result in possible injury to wheelchair occupants. The manufacturer offers a warning label and a user DVD while Ricon attempts to fix the problem. You can find out more about these recall and investigation notices by checking out NHTSA Campaign ID Number 10V106 and 10V109.If, in fact, the occupant in the wheelchair is not secure when lifted into the vehicle, clearly more than a warning is needed.

The market for medical equipment, vehicle modifications and assistive devices, is big business. Health care patients are consumers of medical equipment. The California Lemon Law applies to such goods when purchased for consumers and small businesses. Other California consumer protection laws, such as the Consumer Legal Remedies Act, even offer additional penalties if false advertising or other sales practices target senior citizens or disabled persons who suffer substantial physical, emotional or economic damage thereby. Other statutes protecting against financial abuse of the infirm or elderly can also apply.

The California Lemon Law (the “Song Beverly Consumer Warranty Act”) even has a separate section devoted to wheelchairs, requiring that they “shall be accompanied by the manufacturer’s or lessor’s written express warranty that the wheelchair is free of defects.” In addition, the Act states that every sale of “assistive devices” in California carries an implied warranty that the “device is specifically fit for the particular needs of the buyer.” The definition of “assistive device” excludes eyeglasses, but is otherwise extremely broad.

At the same time, not every manufacturer is liable for vehicle modifications that it does not authorize. So-called “after market” adaptations, if unauthorized, may void the original manufacturer’s new vehicle warranty. The dealer or installer may be the party who is liable if the aftermarket alteration fails.

Seniors, health care patients and disabled persons are especially vulnerable to fraud and abuse. California lawmakers have enacted strong laws to protect this population from deceptive practices and defective products.

Kemnitzer, Barron & Krieg LLP, the host of this California Lemon Law Blog, has just launched a new website with a Q&A section on a variety of consumer protection areas, ongoing consumer alerts, attorney biographies, internet resources, a bibliography and contact links. Check it out here

The firm represents consumers throughout California and has, to date, filed cases in 34 separate California counties. Bryan Kemnitzer, Nancy Barron and Bill Krieg have a combined 99 years experience as trial attorneys fighting to protect consumer rights.

Supported by a dedicated staff, attorneys in the firm have taken individual and class action cases to trial, obtaining verdicts and judgments that include punitive damages and civil penalties. On the other hand, the vast majority of cases settle prior to trial. In settlement, Kemnitzer, Barron & Krieg have obtained debt relief exceeding $300 million, as well as thousands of new car replacements and refunds.

As California consumer lawyers, the members of the firm believe that every consumer is entitled to safe and reliable transportation, fair credit, truth in lending, access to the courts and freedom from fraud. All clients have the opportunity to learn more about consumer protection in ways that increase consumer literacy and save money, as well as resolve the particular case at hand.

Car sales and leases are not sealed with a handshake these days. After hours of haggling, you’ll be told: “Sign here. And here. And here. And here.” Of course, you should get an exact copy of every document signed or initialed at the dealership before taking delivery of the vehicle. Too often, consumers are so excited to escape the high-pressure atmosphere, they hurriedly stuff their papers in the glove box and drive away. Meanwhile, the dealer is completing its own file.

Just what does the dealer keep for itself? Altogether, those items make up the Deal File, sometimes called the Deal Jacket. It contains internal documents that reflect the transaction, parts of which consumers never get to see. The file might include things like the credit application, a four-square page or other paper trail of promises, the ‘recap sheet’ or sales summary, vehicle invoice, finance papers, DMV information, repair history, inspections, trade-in calculations and separate agreements relating to after-market items. Even the front of this folder may have handwritten notes or other key information. Last but not least, the Deal File reveals how much profit was made on the transaction.

Fraud, if there is any, is likely to show up here. An experienced lawyer can peel back layers of deception by doing the math, applying intuition and noticing numbers that do not add up. It is sometimes shocking. Clearly car dealers are entitled to make a profit – that’s what they are in business to do. Yet, the Deal File can disclose profit centers that have nothing to do with the car it self, like a “theft protection” product that costs $37 and is rolled into the vehicle price at $1,400, or a service contract that costs the dealer $250 and is charged to the buyer at $2,500. At some point it becomes unconscionable. We even see instances where the Deal File shows a finance department is cheating its own sales personnel out of commissions just by moving extras from one line item to another.

When I started practicing consumer law in the 1980s, it was hard to get these internal documents. The defendants first denied they existed, and then cited bogus privacy concerns. Now we obtain this essential evidence routinely in the discovery process.

Last month, the California Court of Appeals issued a decision in a case called Lewis v Robinson Ford Sales, Inc. using evidence of the Deal Files to certify a class action for violation of the Rees Levering Act, an important California Truth-in-Lending law. At first the appellate court was going to leave the decision unpublished. We, and a number of other consumer advocates, urged the court to publish the case. The court agreed. Among other things, the case clarifies the evidentiary value of “Deal Files” as standard documents in the automotive industry and recognizes that vehicle transactions “can be evaluated through the deal jacket” for violation of consumer protection laws.

“Is my car a Lemon?” This is a question we hear many times every week. The answer is determined car by car, case by case, r/o by r/o. What is an r/o? Those are the repair orders you get from the service department, and they provide the paper trail of your frustration. Repair orders, along with purchase and warranty documents, are important evidence in every Lemon Law case, and often hold the answer to a consumer's last exasperated gasp: How much is enough?

The California Lemon Law is basically a rule of reason. Before you can claim a refund or replacement, you must give the manufacturer a reasonable opportunity to repair the car or truck. The manufacturer’s opportunity to repair includes all authorized service dealers in this state, thanks to a landmark case we handled many years ago called Ibrahim v Ford Motor Company. But what is reasonable? Or rather, what is unreasonable? Just how much is enough? The answer depends on many factors: how many days the car or truck has been in the repair shop, how many times it was taken in for repairs, what the odometer reading was at each repair attempt, how many miles the car has been driven in all, what the terms of the express warranty are, and in particular, what seems to be the problem.

It makes sense that the California Lemon Law recognizes a difference between defective brakes and poor radio reception. If the defect is likely to cause death or serious bodily injury, even two repair attempts is presumed to be a reasonable opportunity to repair, if certain other conditions are met. Other substantial defects prompt a finding of unreasonableness after four repairs. General poor quality of a vehicle can also trigger the Lemon Law, such as when the car is in for 30 days or more for a variety of defects within the first year and a half, or 18,000 miles of use.

You can start answering the question “How much is enough?” yourself by digging out your complete set of r/o’s. If you think even one is missing, return to the servicing dealer and ask for a printout of the complete warranty history. Years ago, these were hard to get, but now the complete history should be readily available on a single computer printout. It is important to save every repair order, and it is equally important to get them written up in the first place. If you are taking your car in over and over again for the same repair, don’t let the dealer get away with refusing to write up an r/o. Get some documentation of your complaint every time you take the car in for service of any kind.

Once you have a complete set of repair documents, put them in chronological order. We can help you list the dates you took the car in and count the number of days before you picked it up; along with the date, we list the odometer reading; we list every condition or concern you mentioned and what was worked on, even if these things do not seem connected at first. This repair chronology will begin to provide an objective picture of your experience with the car. Ask yourself whether the defects make you feel less safe in the vehicle, and whether you feel they have substantially impaired the car’s use or value to you. After 25 years of handling Lemon Law claims, we investigate each case on its own particular facts, and these are questions we will be asking when you visit our law office to ask: “How much is enough?”