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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.
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