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California Civil Code Section 1793.22 , 1794
(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 toparticipate also. Nothing in this subdivision prohibits
any member of anarbitration 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 thenature 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.
source: Center for Auto Safety
http://www.autosafety.org/
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