Whether a consumer should negotiate with a vehicle manufacturer regarding a potential lemon law or breach of warranty claim is a matter of personal choice that should be based on the consumer being informed on the pertinent law and the facts of the consumer’s particular case. The reality is that California lemon laws, including the Song Beverly Consumer Warranty Act and related statutes like California Consumers Legal Remedies Act, Unfair Competition, False Advertising, Fraud, and Misrepresentation, to name a few, are rather complicated.
To complicate matters even more, a consumer is generally not trained in the nuances of putting facts to the law, and vice versa. For example, would a consumer know whether he or she would have a pure lemon law buyback complaint, or whether the consumer’s claim falls under the “presumption” period, or whether the consumer may also have other claims such as those for “misrepresentation” or “fraud.” The other problem that arises is a tactical one: to whom should the consumer send a demand letter to? The vehicle manufacturer, dealership, or both? And should a demand letter be sent at all? Let us pretend for the sake of argument that the vehicle manufacturer is amenable to the consumer’s lemon law complaint. What is the vehicle manufacturer offering the consumer to settle claim, and more importantly, what is the consumer giving up in return?
There have been instances when a consumer would contact an attorney and explain to the attorney the problems associated with the vehicle. The attorney in turn would gather the evidence and preliminarily would ascertain that there is a plausible lemon law claim against the vehicle manufacturer but finds out through evidence gathering that the consumer previously settled a lemon law claim with the vehicle manufacturer for a different problem associated with the vehicle in question. After reading the previous settlement the consumer signed, the attorney finds out that the consumer has given up his or her rights to any other lemon law claim associated with the vehicle in exchange for a minimal amount of cash. What the consumer received in the previous example is what is generally known in the industry as a “cash and keep” settlement. The problem with the previous example is not necessarily that the settlement was a “cash and keep” settlement but that it seems what the document the consumer signed was not understood by the consumer at all, since the vehicle manufacturer does not a have a duty to explain the document to the consumer, and because the amount received was not commensurate with the problems associated with the vehicle.
Lastly, because the Song Beverly Consumer Warranty Act and related California statutes provide for attorneys’ fees be paid by the vehicle manufacturer if the consumer prevails, there should not be a disincentive for the consumer to hire an attorney to prosecute a lemon law claim.
A California consumer is not mandated by law to use an attorney to prosecute his or her lemon law claim. Nevertheless, California lemon laws are extensive and complicated. Because the Song Beverly Consumer Warranty Act and related statutes incentivize the use of an attorney to prosecute a lemon law claim in California because it provides for attorneys’ fees and costs be paid by the vehicle manufacturer if the consumer prevails in his or her claim, a California consumer should entertain the idea of at least consulting with a competent California lemon law attorney before embarking on taking on a vehicle manufacturer or dealership.
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Luis Aguirre California Lemon Law Attorney 26060 Acero Suite 111
Mission Viejo, CA 92691 Telephone: 949.342.6199.