1792. Unless disclaimed in the manner prescribed by this chapter,
every sale of consumer goods that are sold at retail in this state
shall be accompanied by the manufacturer's and the retail seller's
implied warranty that the goods are merchantable. The retail seller
shall have a right of indemnity against the manufacturer in the
amount of any liability under this section.
1792.1. Every sale of consumer goods that are sold at retail in
this state by a manufacturer who has reason to know at the time of
the retail sale that the goods are required for a particular purpose
and that the buyer is relying on the manufacturer's skill or judgment
to select or furnish suitable goods shall be accompanied by such
manufacturer's implied warranty of fitness.
1792.2. (a) Every sale of consumer goods that are sold at retail in
this state by a retailer or distributor who has reason to know at
the time of the retail sale that the goods are required for a
particular purpose, and that the buyer is relying on the retailer's
or distributor's skill or judgment to select or furnish suitable
goods shall be accompanied by such retailer's or distributor's
implied warranty that the goods are fit for that purpose.
(b) Every sale of an assistive device sold at retail in this state
shall be accompanied by the retail seller's implied warranty that
the device is specifically fit for the particular needs of the buyer.
1792.3. No implied warranty of merchantability and, where
applicable, no implied warranty of fitness shall be waived, except in
the case of a sale of consumer goods on an "as is" or "with all
faults" basis where the provisions of this chapter affecting "as is"
or "with all faults" sales are strictly complied with.
1792.4. (a) No sale of goods, governed by the provisions of this
chapter, on an "as is" or "with all faults" basis, shall be effective
to disclaim the implied warranty of merchantability or, where
applicable, the implied warranty of fitness, unless a conspicuous
writing is attached to the goods which clearly informs the buyer,
prior to the sale, in simple and concise language of each of the
following:
(1) The goods are being sold on an "as is" or "with all faults"
basis.
(2) The entire risk as to the quality and performance of the goods
is with the buyer.
(3) Should the goods prove defective following their purchase, the
buyer and not the manufacturer, distributor, or retailer assumes the
entire cost of all necessary servicing or repair.
(b) In the event of sale of consumer goods by means of a mail
order catalog, the catalog offering such goods shall contain the
required writing as to each item so offered in lieu of the
requirement of notification prior to the sale.
1792.5. Every sale of goods that are governed by the provisions of
this chapter, on an "as is" or "with all faults" basis, made in
compliance with the provisions of this chapter, shall constitute a
waiver by the buyer of the implied warranty of merchantability and,
where applicable, of the implied warranty of fitness.
1793. Except as provided in Section 1793.02, nothing in this
chapter shall affect the right of the manufacturer, distributor, or
retailer to make express warranties with respect to consumer goods.
However, a manufacturer, distributor, or retailer, in transacting a
sale in which express warranties are given, may not limit, modify, or
disclaim the implied warranties guaranteed by this chapter to the
sale of consumer goods.
1793.02. (a) All new and used assistive devices sold at retail in
this state shall be accompanied by the retail seller's written
warranty which shall contain the following language: "This assistive
device is warranted to be specifically fit for the particular needs
of you, the buyer. If the device is not specifically fit for your
particular needs, it may be returned to the seller within 30 days of
the date of actual receipt by you or completion of fitting by the
seller, whichever occurs later. If you return the device, the seller
will either adjust or replace the device or promptly refund the total
amount paid. This warranty does not affect the protections and
remedies you have under other laws." In lieu of the words "30 days"
the retail seller may specify any longer period.
(b) The language prescribed in subdivision (a) shall appear on the
first page of the warranty in at least 10-point bold type. The
warranty shall be delivered to the buyer at the time of the sale of
the device.
(c) If the buyer returns the device within the period specified in
the written warranty, the seller shall, without charge and within a
reasonable time, adjust the device or, if appropriate, replace it
with a device that is specifically fit for the particular needs of
the buyer. If the seller does not adjust or replace the device so
that it is specifically fit for the particular needs of the buyer,
the seller shall promptly refund to the buyer the total amount paid,
the transaction shall be deemed rescinded, and the seller shall
promptly return to the buyer all payments and any assistive device or
other consideration exchanged as part of the transaction and shall
promptly cancel or cause to be canceled all contracts, instruments,
and security agreements executed by the buyer in connection with the
sale. When a sale is rescinded under this section, no charge,
penalty, or other fee may be imposed in connection with the purchase,
fitting, financing, or return of the device.
(d) With respect to the retail sale of an assistive device to an
individual, organization, or agency known by the seller to be
purchasing for the ultimate user of the device, this section and
subdivision (b) of Section 1792.2 shall be construed to require that
the device be specifically fit for the particular needs of the
ultimate user.
(e) This section and subdivision (b) of Section 1792.2 shall not
apply to any of the following sales of assistive devices:
(1) A catalog or similar sale, as defined in subdivision (q) of
Section 1791, except a sale of a hearing aid.
(2) A sale which involves a retail sale price of less than fifteen
dollars ($15).
(3) A surgical implant performed by a physician and surgeon, or a
restoration or dental prosthesis provided by a dentist.
(f) The rights and remedies of the buyer under this section and
subdivision (b) of Section 1792.2 are not subject to waiver under
Section 1792.3. The rights and remedies of the buyer under this
section and subdivision (b) of Section 1792.2 are cumulative, and
shall not be construed to affect the obligations of the retail seller
or any other party or to supplant the rights or remedies of the
buyer under any other section of this chapter or under any other law
or instrument.
(g) Section 1795.5 shall not apply to a sale of used assistive
devices, and for the purposes of the Song-Beverly Consumer Warranty
Act the buyer of a used assistive device shall have the same rights
and remedies as the buyer of a new assistive device.
(h) The language in subdivision (a) shall not constitute an
express warranty for purposes of Sections 1793.2 and 1793.3.
1793.025. (a) All new and used wheelchairs, including, but not
limited to, wheelchairs that are motorized or have been otherwise
customized to suit the needs of the user, shall be accompanied by the
manufacturer's or lessor's written express warranty that the
wheelchair is free of defects. The duration of the warranty shall be
for a period of at least one year from the date of the first delivery
of a new wheelchair to the consumer, or at least 60 days from the
date of the first delivery of a used, refurbished, or reconditioned
wheelchair to the consumer. If the written express warranty is not
furnished to the consumer, the wheelchair nonetheless shall be deemed
to be covered by the express warranty. This section shall not apply
to wheelchairs manufactured specifically for athletic, competitive,
or off-road use.
(b) The provisions of this chapter for express warranties govern
the express warranty described in subdivision (a), whether or not
those provisions only apply to the sale, and not the lease, of goods.
(c) A reasonable number of attempts have been made to conform a
wheelchair to the express warranty if, within the warranty period or
within one year of inception of the warranty, whichever occurs first,
(1) the same nonconformity has been subject to repair four or more
times by the manufacturer, lessor, or an agent thereof, and continues
to exist, or (2) the wheelchair is out of service by reason of
repair of nonconformities by the manufacturer, lessor, or an agent
thereof, for a cumulative total of more than 30 calendar days since
inception of the warranty.
(d) No wheelchair that has been returned to the manufacturer,
lessor, or an agent thereof, by the consumer for failure to repair a
nonconformity after a reasonable number of attempts, either in this
state or in another state pursuant to a similar statute of that
state, may be sold or leased again in this state unless the reasons
for the return are fully disclosed to the prospective buyer or
lessee.
(e) If the wheelchair is out of service for a period of at least
24 hours for the repair of a nonconformity by the manufacturer,
lessor, or agent thereof, a temporary replacement wheelchair shall be
made available to the consumer, if requested. The provider of the
temporary replacement wheelchair may not charge the consumer more
than the cost to the provider to make the wheelchair available to the
consumer. Nothing in this subdivision is intended to prevent a
consumer and a provider from negotiating an agreement in which the
provider assumes the cost of providing a temporary replacement
wheelchair to the consumer.
1793.03. (a) Every manufacturer making an express warranty with
respect to an electronic or appliance product described in
subdivision (h), (i), (j), or (k) of Section 9801 of the Business and
Professions Code, with a wholesale price to the retailer of not less
than fifty dollars ($50) and not more than ninety-nine dollars and
ninety-nine cents ($99.99), shall make available to service and
repair facilities sufficient service literature and functional parts
to effect the repair of a product for at least three years after the
date a product model or type was manufactured, regardless of whether
the three-year period exceeds the warranty period for the product.
(b) Every manufacturer making an express warranty with respect to
an electronic or appliance product described in subdivision (h), (i),
(j), or (k) of Section 9801 of the Business and Professions Code,
with a wholesale price to the retailer of one hundred dollars ($100)
or more, shall make available to service and repair facilities
sufficient service literature and functional parts to effect the
repair of a product for at least seven years after the date a product
model or type was manufactured, regardless of whether the seven-year
period exceeds the warranty period for the product
1793.05. Vehicle manufacturers who alter new vehicles into
housecars shall, in addition to any new product warranty, assume any
warranty responsibility of the original vehicle manufacturer for any
and all components of the finished product which are, by virtue of
any act of the alterer, no longer covered by the warranty issued by
the original vehicle manufacturer.
1793.1. (a) (1) Every manufacturer, distributor, or retailer making
express warranties with respect to consumer goods shall fully set
forth those warranties in simple and readily understood language,
which shall clearly identify the party making the express warranties,
and which shall conform to the federal standards for disclosure of
warranty terms and conditions set forth in the federal Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act (15 U.S.C. Sec.
2301 et seq.), and in the regulations of the Federal Trade Commission
adopted pursuant to the provisions of that act. If the manufacturer,
distributor, or retailer provides a warranty or product registration
card or form, or an electronic online warranty or product
registration form, to be completed and returned by the consumer, the
card or form shall contain statements, each displayed in a clear and
conspicuous manner, that do all of the following:
(A) Informs the consumer that the card or form is for product
registration.
(B) Informs the consumer that failure to complete and return the
card or form does not diminish his or her warranty rights.
(2) Every work order or repair invoice for warranty repairs or
service shall clearly and conspicuously incorporate in 10-point
boldface type the following statement either on the face of the work
order or repair invoice, or on the reverse side, or on an attachment
to the work order or repair invoice: "A buyer of this product in
California has the right to have this product serviced or repaired
during the warranty period. The warranty period will be extended for
the number of whole days that the product has been out of the buyer's
hands for warranty repairs. If a defect exists within the warranty
period, the warranty will not expire until the defect has been fixed.
The warranty period will also be extended if the warranty repairs
have not been performed due to delays caused by circumstances beyond
the control of the buyer, or if the warranty repairs did not remedy
the defect and the buyer notifies the manufacturer or seller of the
failure of the repairs within 60 days after they were completed. If,
after a reasonable number of attempts, the defect has not been fixed,
the buyer may return this product for a replacement or a refund
subject, in either case, to deduction of a reasonable charge for
usage. This time extension does not affect the protections or
remedies the buyer has under other laws."
If the required notice is placed on the reverse side of the work
order or repair invoice, the face of the work order or repair invoice
shall include the following notice in 10-point boldface type:
"Notice to Consumer: Please read important information on back."
A copy of the work order or repair invoice and any attachment
shall be presented to the buyer at the time that warranty service or
repairs are made.
(b) No warranty or product registration card or form, or an
electronic online warranty or product registration form, may be
labeled as a warranty registration or a warranty confirmation.
(c) The requirements imposed by this section on the distribution
of any warranty or product registration card or form, or an
electronic online warranty or product registration form, shall become
effective on January 1, 2004.
(d) This section does not apply to any warranty or product
registration card or form that was printed prior to January 1, 2004,
and was shipped or included with a product that was placed in the
stream of commerce prior to January 1, 2004.
(e) Every manufacturer, distributor, or retailer making express
warranties and who elects to maintain service and repair facilities
within this state pursuant to this chapter shall perform one or more
of the following:
(1) At the time of sale, provide the buyer with the name and
address of each service and repair facility within this state.
(2) At the time of the sale, provide the buyer with the name and
address and telephone number of a service and repair facility central
directory within this state, or the toll-free telephone number of a
service and repair facility central directory outside this state. It
shall be the duty of the central directory to provide, upon inquiry,
the name and address of the authorized service and repair facility
nearest the buyer.
(3) Maintain at the premises of retail sellers of the warrantor's
consumer goods a current listing of the warrantor's authorized
service and repair facilities, or retail sellers to whom the consumer
goods are to be returned for service and repair, whichever is
applicable, within this state. It shall be the duty of every retail
seller provided with that listing to provide, on inquiry, the name,
address, and telephone number of the nearest authorized service and
repair facility, or the retail seller to whom the consumer goods are
to be returned for service and repair, whichever is applicable.
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, do not preclude a good faith discount that 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 may 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 its 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 nonmanufacturer 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.
(e) (1) If the goods cannot practicably be serviced or repaired by
the manufacturer or its representative to conform to the applicable
express warranties because of the method of installation or because
the goods have become so affixed to real property as to become a part
thereof, the manufacturer shall either replace and install the goods
or reimburse the buyer in an amount equal to the purchase price paid
by the buyer, including installation costs, less that amount
directly attributable to use by the buyer prior to the discovery of
the nonconformity.
(2) With respect to claims arising out of deficiencies in the
construction of a new residential dwelling, paragraph (1) shall not
apply to either of the following:
(A) A product that is not a manufactured product, as defined in
subdivision (g) of Section 896.
(B) A claim against a person or entity that is not the
manufacturer that originally made the express warranty for that
manufactured product.
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.
1793.23. (a) The Legislature finds and declares all of the
following:
(1) That the expansion of state warranty laws covering new and
used cars has given important and valuable protection to consumers.
(2) That, in states without this valuable warranty protection,
used and irrepairable motor vehicles are being resold in the
marketplace without notice to the subsequent purchaser.
(3) That other states have addressed this problem by requiring
notices on the title of these vehicles or other notice procedures to
warn consumers that the motor vehicles were repurchased by a dealer
or manufacturer because the vehicle could not be repaired in a
reasonable length of time or a reasonable number of repair attempts
or the dealer or manufacturer was not willing to repair the vehicle.
(4) That these notices serve the interests of consumers who have a
right to information relevant to their buying decisions.
(5) That the disappearance of these notices upon the transfer of
title from another state to this state encourages the transport of
"lemons" to this state for sale to the drivers of this state.
(b) This section and Section 1793.24 shall be known, and may be
cited as, the Automotive Consumer Notification Act.
(c) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle registered in this state, any
other state, or a federally administered district shall, prior to
any sale, lease, or transfer of the vehicle in this state, or prior
to exporting the vehicle to another state for sale, lease, or
transfer if the vehicle was registered in this state and reacquired
pursuant to paragraph (2) of subdivision (d) of Section 1793.2, cause
the vehicle to be retitled in the name of the manufacturer, request
the Department of Motor Vehicles to inscribe the ownership
certificate with the notation "Lemon Law Buyback," and affix a decal
to the vehicle in accordance with Section 11713.12 of the Vehicle
Code if the manufacturer knew or should have known that the vehicle
is required by law to be replaced, accepted for restitution due to
the failure of the manufacturer to conform the vehicle to applicable
warranties pursuant to paragraph (2) of subdivision (d) of Section
1793.2, or accepted for restitution by the manufacturer due to the
failure of the manufacturer to conform the vehicle to warranties
required by any other applicable law of the state, any other state,
or federal law.
(d) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle in response to a request by
the buyer or lessee that the vehicle be either replaced or accepted
for restitution because the vehicle did not conform to express
warranties shall, prior to the sale, lease, or other transfer of the
vehicle, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(e) Any person, including any dealer, who acquires a motor vehicle
for resale and knows or should have known that the vehicle was
reacquired by the vehicle's manufacturer in response to a request by
the last retail owner or lessee of the vehicle that it be replaced or
accepted for restitution because the vehicle did not conform to
express warranties shall, prior to the sale, lease, or other
transfer, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(f) Any person, including any manufacturer or dealer, who sells,
leases, or transfers ownership of a motor vehicle when the vehicle's
ownership certificate is inscribed with the notation "Lemon Law
Buyback" shall, prior to the sale, lease, or ownership transfer of
the vehicle, provide the transferee with a disclosure statement
signed by the transferee that states:
"THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A DEFECT IN
THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE TO THIS
VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON LAW
BUYBACK'."
(g) The disclosure requirements in subdivisions (d), (e), and (f)
are cumulative with all other consumer notice requirements and do not
relieve any person, including any dealer or manufacturer, from
complying with any other applicable law, including any requirement of
subdivision (f) of Section 1793.22.
(h) For purposes of this section, "dealer" means any person
engaged in the business of selling, offering for sale, or negotiating
the retail sale of, a used motor vehicle or selling motor vehicles
as a broker or agent for another, including the officers, agents, and
employees of the person and any combination or association of
dealers.
1793.24. (a) The notice required in subdivisions (d) and (e) of
Section 1793.23 shall be prepared by the manufacturer of the
reacquired vehicle and shall disclose all of the following:
(1) Year, make, model, and vehicle identification number of the
vehicle.
(2) Whether the title to the vehicle has been inscribed with the
notation "Lemon Law Buyback."
(3) The nature of each nonconformity reported by the original
buyer or lessee of the vehicle.
(4) Repairs, if any, made to the vehicle in an attempt to correct
each nonconformity reported by the original buyer or lessee.
(b) The notice shall be on a form 8 1/2 x 11 inches in size and
printed in no smaller than 10-point black type on a white background.
The form shall only contain the following information prior to it
being filled out by the manufacturer:
WARRANTY BUYBACK NOTICE
(Check One)
/_/ This vehicle was repurchased by the vehicle's manufacturer
after the last retail owner or lessee requested its repurchase due to
the problem(s) listed below.
/_/ THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A
DEFECT IN THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE
TO THIS VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON
LAW BUYBACK." Under California law, the manufacturer must warrant to
you, for a one year period, that the vehicle is free of the problem
(s) listed below.
+---------------------+-------+----------+-----------+
|V.I.N. |Year |Make |Model |
+---------------------+-------+----------+-----------+
+-------------------------+------------------------+
| | Repairs Made, if any, |
| | to |
| | |
| Problem(s) Reported by | Correct Reported |
| | Problem(s) |
| Original Owner | |
| | |
| | |
| | |
+-------------------------+------------------------+
Signature of Manufacturer Date
__________________________________ ______________
Signature of Dealer(s) Date
__________________________________ ______________
__________________________________ ______________
__________________________________ ______________
Signature of Retail Buyer or Date
Lessee
__________________________________ ______________
__________________________________ ______________
(c) The manufacturer shall provide an executed copy of the notice
to the manufacturer's transferee. Each transferee, including a
dealer, to whom the motor vehicle is transferred prior to its sale to
a retail buyer or lessee shall be provided an executed copy of the
notice by the previous transferor.
1793.25. (a) Notwithstanding Part 1 (commencing with Section 6001)
of Division 2 of the Revenue and Taxation Code, the State Board of
Equalization shall reimburse the manufacturer of a new motor vehicle
for an amount equal to the sales tax which the manufacturer pays to
or for the buyer when providing a replacement vehicle pursuant to
subparagraph (A) of paragraph (2) of subdivision (d) of Section
1793.2 or includes in making restitution to the buyer pursuant to
subparagraph (B) of paragraph (2) of subdivision (d) of Section
1793.2, when satisfactory proof is provided that the retailer of the
motor vehicle for which the manufacturer is making restitution has
reported and paid the sales tax on the gross receipts from the sale
of that motor vehicle and the manufacturer provides satisfactory
proof that it has complied with subdivision (c) of Section 1793.23.
The State Board of Equalization may adopt rules and regulations to
carry out, facilitate compliance with, or prevent circumvention or
evasion of, this section.
(b) Nothing in this section shall in any way change the
application of the sales and use tax to the gross receipts and the
sales price from the sale, and the storage, use, or other
consumption, in this state or tangible personal property pursuant to
Part 1 (commencing with Section 6001) of Division 2 of the Revenue
and Taxation Code.
(c) The manufacturer's claim for reimbursement and the board's
approval or denial of the claim shall be subject to the provisions of
Article 1 (commencing with Section 6901) of Chapter 7 of Part 1 of
Division 2 of the Revenue and Taxation Code, except Sections 6902.1,
6903, 6907, and 6908 thereof, insofar as those provisions are not
inconsistent with this section.
1793.26. (a) Any automobile manufacturer, importer, distributor,
dealer, or lienholder who reacquires, or who assists in reacquiring,
a motor vehicle, whether by judgment, decree, arbitration award,
settlement agreement, or voluntary agreement, is prohibited from
doing either of the following:
(1) Requiring, as a condition of the reacquisition of the motor
vehicle, that a buyer or lessee who is a resident of this state agree
not to disclose the problems with the vehicle experienced by the
buyer or lessee or the nonfinancial terms of the reacquisition.
(2) Including, in any release or other agreement, whether prepared
by the manufacturer, importer, distributor, dealer, or lienholder,
for signature by the buyer or lessee, a confidentiality clause, gag
clause, or similar clause prohibiting the buyer or lessee from
disclosing information to anyone about the problems with the vehicle,
or the nonfinancial terms of the reacquisition of the vehicle by the
manufacturer, importer, distributor, dealer, or lienholder.
(b) Any confidentiality clause, gag clause, or similar clause in
such a release or other agreement in violation of this section shall
be null and void as against the public policy of this state.
(c) Nothing in this section is intended to prevent any
confidentiality clause, gag clause, or similar clause regarding the
financial terms of the reacquisition of the vehicle.
1793.3. If the manufacturer of consumer goods sold in this state
for which the manufacturer has made an express warranty does not
provide service and repair facilities within this state pursuant to
subdivision (a) of Section 1793.2, or does not make available to
authorized service and repair facilities service literature and
replacement parts sufficient to effect repair during the express
warranty period, the buyer of such manufacturer's nonconforming goods
may follow the course of action prescribed in either subdivision
(a), (b), or (c), below, as follows:
(a) Return the nonconforming consumer goods to the retail seller
thereof. The retail seller shall do one of the following:
(1) Service or repair the nonconforming goods to conform to the
applicable warranty.
(2) Direct the buyer to a reasonably close independent repair or
service facility willing to accept service or repair under this
section.
(3) Replace the nonconforming goods with goods that are identical
or reasonably equivalent to the warranted goods.
(4) Refund to the buyer the original purchase price less that
amount directly attributable to use by the buyer prior to the
discovery of the nonconformity.
(b) Return the nonconforming consumer goods to any retail seller
of like goods of the same manufacturer within this state who may do
one of the following:
(1) Service or repair the nonconforming goods to conform to the
applicable warranty.
(2) Direct the buyer to a reasonably close independent repair or
service facility willing to accept service or repair under this
section.
(3) Replace the nonconforming goods with goods that are identical
or reasonably equivalent to the warranted goods.
(4) Refund to the buyer the original purchase price less that
amount directly attributable to use by the buyer prior to the
discovery of the nonconformity.
(c) Secure the services of an independent repair or service
facility for the service or repair of the nonconforming consumer
goods, when service or repair of the goods can be economically
accomplished. In that event the manufacturer shall be liable to the
buyer, or to the independent repair or service facility upon an
assignment of the buyer's rights, for the actual and reasonable cost
of service and repair, including any cost for parts and any
reasonable cost of transporting the goods or parts, plus a reasonable
profit. It shall be a rebuttable presumption affecting the burden of
producing evidence that the reasonable cost of service or repair is
an amount equal to that which is charged by the independent service
dealer for like services or repairs rendered to service or repair
customers who are not entitled to warranty protection. Any waiver of
the liability of a manufacturer shall be void and unenforceable.
The course of action prescribed in this subdivision shall be
available to the buyer only after the buyer has followed the course
of action prescribed in either subdivision (a) or (b) and such course
of action has not furnished the buyer with appropriate relief. In no
event, shall the provisions of this subdivision be available to the
buyer with regard to consumer goods with a wholesale price to the
retailer of less than fifty dollars ($50). In no event shall the
buyer be responsible or liable for service or repair costs charged by
the independent repair or service facility which accepts service or
repair of nonconforming consumer goods under this section. Such
independent repair or service facility shall only be authorized to
hold the manufacturer liable for such costs.
(d) A retail seller to which any nonconforming consumer good is
returned pursuant to subdivision (a) or (b) shall have the option of
providing service or repair itself or directing the buyer to a
reasonably close independent repair or service facility willing to
accept service or repair under this section. In the event the retail
seller directs the buyer to an independent repair or service
facility, the manufacturer shall be liable for the reasonable cost of
repair services in the manner provided in subdivision (c).
(e) In the event a buyer is unable to return nonconforming goods
to the retailer due to reasons of size and weight, or method of
attachment, or method of installation, or nature of the
nonconformity, the buyer shall give notice of the nonconformity to
the retailer. Upon receipt of such notice of nonconformity the
retailer shall, at its option, service or repair the goods at the
buyer's residence, or pick up the goods for service or repair, or
arrange for transporting the goods to its place of business. The
reasonable costs of transporting the goods shall be at the retailer's
expense. The retailer shall be entitled to recover all such
reasonable costs of transportation from the manufacturer pursuant to
Section 1793.5. The reasonable costs of transporting nonconforming
goods after delivery to the retailer until return of the goods to the
buyer, when incurred by a retailer, shall be recoverable from the
manufacturer pursuant to Section 1793.5. Written notice of
nonconformity to the retailer shall constitute return of the goods
for the purposes of subdivisions (a) and (b).
(f) The manufacturer of consumer goods with a wholesale price to
the retailer of fifty dollars ($50) or more for which the
manufacturer has made express warranties shall provide written notice
to the buyer of the courses of action available to him under
subdivision (a), (b), or (c).
1793.35. (a) Where the retail sale of clothing or consumables is
accompanied by an express warranty and such items do not conform with
the terms of the express warranty, the buyer thereof may return the
goods within 30 days of purchase or the period specified in the
warranty, whichever is greater. The manufacturer may, in the express
warranty, direct the purchaser to return nonconforming goods to a
retail seller of like goods of the same manufacturer for replacement.
(b) When clothing or consumables are returned to a retail seller
for the reason that they do not conform to an express warranty, the
retailer shall replace the nonconforming goods where the manufacturer
has directed replacement in the express warranty. In the event the
manufacturer has not directed replacement in the express warranty,
the retailer may replace the nonconforming goods or reimburse the
buyer in an amount equal to the purchase price paid by the buyer for
the goods, at the option of the retailer. Costs of reimbursement or
replacement are recoverable by a retailer from the manufacturer in
the manner provided in Section 1793.5.
(c) Where the retail sale of draperies is not accompanied by an
express warranty and the sale of such draperies is accompanied by a
conspicuous writing disclaiming the retailer's implied warranty of
merchantability on the fabric, the retailer's implied warranty of
merchantability shall not apply to the fabric.
1793.4. Where an option is exercised in favor of service and repair
under Section 1793.3, such service and repair must be commenced
within a reasonable time, and, unless the buyer agrees in writing to
the contrary, goods conforming to the applicable express warranties
shall be tendered within 30 days. Delay caused by conditions beyond
the control of the retail seller or his representative shall serve to
extend this 30-day requirement. Where such a delay arises,
conforming goods shall be tendered as soon as possible following
termination of the condition giving rise to the delay.
1793.5. Every manufacturer making express warranties who does not
provide service and repair facilities within this state pursuant to
subdivision (a) of Section 1793.2 shall be liable as prescribed in
this section to every retail seller of such manufacturer's goods who
incurs obligations in giving effect to the express warranties that
accompany such manufacturer's consumer goods. The amount of such
liability shall be determined as follows:
(a) In the event of replacement, in an amount equal to the actual
cost to the retail seller of the replaced goods, and cost of
transporting the goods, if such costs are incurred plus a reasonable
handling charge.
(b) In the event of service and repair, in an amount equal to that
which would be received by the retail seller for like service
rendered to retail consumers who are not entitled to warranty
protection, including actual and reasonable costs of the service and
repair and the cost of transporting the goods, if such costs are
incurred, plus a reasonable profit.
(c) In the event of reimbursement under subdivision (a) of Section
1793.3, in an amount equal to that reimbursed to the buyer, plus a
reasonable handling charge.
1793.6. Except as otherwise provided in the terms of a warranty
service contract, as specified in subdivision (a) of Section 1793.2,
entered into between a manufacturer and an independent service and
repair facility, every manufacturer making express warranties whose
consumer goods are sold in this state shall be liable as prescribed
in this section to every independent serviceman who performs services
or incurs obligations in giving effect to the express warranties
that accompany such manufacturer's consumer goods whether the
independent serviceman is acting as an authorized service and repair
facility designated by the manufacturer pursuant to paragraph (1) of
subdivision (a) of Section 1793.2 or is acting as an independent
serviceman pursuant to subdivisions (c) and (d) of Section 1793.3.
The amount of such liability shall be an amount equal to the actual
and reasonable costs of the service and repair, including any cost
for parts and any reasonable cost of transporting the goods or parts,
plus a reasonable profit. It shall be a rebuttable presumption
affecting the burden of producing evidence that the reasonable cost
of service or repair is an amount equal to that which is charged by
the independent serviceman for like services or repairs rendered to
service or repair customers who are not entitled to warranty
protection. Any waiver of the liability of a manufacturer shall be
void and unenforceable.
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.
1794.1. (a) Any retail seller of consumer goods injured by the
willful or repeated violation of the provisions of this chapter may
bring an action for the recovery of damages. Judgment may be entered
for three times the amount at which the actual damages are assessed
plus reasonable attorney fees.
(b) Any independent serviceman of consumer goods injured by the
willful or repeated violation of the provisions of this chapter may
bring an action for the recovery of damages. Judgment may be entered
for three times the amount at which the actual damages are assessed
plus reasonable attorney fees.
1794.3. The provisions of this chapter shall not apply to any
defect or nonconformity in consumer goods caused by the unauthorized
or unreasonable use of the goods following sale.
1794.4. (a) Nothing in this chapter shall be construed to prevent
the sale of a service contract to the buyer in addition to or in lieu
of an express warranty if that contract fully and conspicuously
discloses in simple and readily understood language the terms,
conditions, and exclusions of that contract, provided that nothing in
this section shall apply to a home protection contract issued by a
home protection company that is subject to Part 7 (commencing with
Section 12740) of Division 2 of the Insurance Code.
(b) Except as otherwise expressly provided in the service
contract, every service contract shall obligate the service
contractor to provide to the buyer of the product all of the services
and functional parts that may be necessary to maintain proper
operation of the entire product under normal operation and service
for the duration of the service contract and without additional
charge.
(c) The service contract shall contain all of the following items
of information:
(1) A clear description and identification of the covered product.
(2) The point in time or event when the term of the service
contract commences, and its duration measured by elapsed time or an
objective measure of use.
(3) If the enforceability of the service contract is limited to
the original buyer or is limited to persons other than every consumer
owner of the covered product during the term of the service
contract, a description of the limits on transfer or assignment of
the service contract.
(4) A statement of the general obligation of the service
contractor in the same language set forth in subdivision (b), with
equally clear and conspicuous statements of the following:
(A) Any services, parts, characteristics, components, properties,
defects, malfunctions, causes, conditions, repairs, or remedies that
are excluded from the scope of the service contract.
(B) Any other limits on the application of the language in
subdivision (b) such as a limit on the total number of service calls.
(C) Any additional services that the service contractor will
provide.
(D) Whether the obligation of the service contractor includes
preventive maintenance and, if so, the nature and frequency of the
preventive maintenance that the service contractor will provide.
(E) Whether the buyer has an obligation to provide preventive
maintenance or perform any other obligations and, if so, the nature
and frequency of the preventive maintenance and of any other
obligations, and the consequences of any noncompliance.
(5) A step-by-step explanation of the procedure that the buyer
should follow in order to obtain performance of any obligation under
the service contract including the following:
(A) The full legal and business name of the service contractor.
(B) The mailing address of the service contractor.
(C) The persons or class of persons that are authorized to perform
service.
(D) The name or title and address of any agent, employee, or
department of the service contractor that is responsible for the
performance of any obligations.
(E) The method of giving notice to the service contractor of the
need for service.
(F) Whether in-home service is provided or, if not, whether the
costs of transporting the product, for service or repairs will be
paid by the service contractor.
(G) If the product must be transported to the service contractor,
either the place where the product may be delivered for service or
repairs or a toll-free telephone number that the buyer may call to
obtain that information.
(H) All other steps that the buyer must take to obtain service.
(I) All fees, charges, and other costs that the buyer must pay to
obtain service.
(6) An explanation of the steps that the service contractor will
take to carry out its obligations under the service contract.
(7) A description of any right to cancel the contract if the buyer
returns the product or the product is sold, lost, stolen, or
destroyed, or, if there is no right to cancel or the right to cancel
is limited, a statement of the fact.
(8) Information respecting the availability of any informal
dispute settlement process.
(d) Subdivisions (b) and (c) are applicable to service contracts
on new or used home appliances and home electronic products entered
into on or after July 1, 1989. They are applicable to service
contracts on all other new or used products entered into on and after
July 1, 1991.
(e) This section shall become operative on January 1, 2008.
1794.41. (a) No service contract covering any motor vehicle, home
appliance, or home electronic product purchased for use in this state
may be offered for sale or sold unless all of the following elements
exist:
(1) The contract shall contain the disclosures specified in
Section 1794.4 and shall disclose in the manner described in that
section the buyer's cancellation and refund rights provided by this
section.
(2) The contract shall be available for inspection by the buyer
prior to purchase and either the contract, or a brochure which
specifically describes the terms, conditions, and exclusions of the
contract, and the provisions of this section relating to contract
delivery, cancellation, and refund, shall be delivered to the buyer
at or before the time of purchase of the contract. Within 60 days
after the date of purchase, the contract itself shall be delivered to
the buyer. If a service contract for a home appliance or a home
electronic product is sold by means of a telephone solicitation, the
seller may elect to satisfy the requirements of this
1792. Unless disclaimed in the manner prescribed by this chapter,
every sale of consumer goods that are sold at retail in this state
shall be accompanied by the manufacturer's and the retail seller's
implied warranty that the goods are merchantable. The retail seller
shall have a right of indemnity against the manufacturer in the
amount of any liability under this section.
1792.1. Every sale of consumer goods that are sold at retail in
this state by a manufacturer who has reason to know at the time of
the retail sale that the goods are required for a particular purpose
and that the buyer is relying on the manufacturer's skill or judgment
to select or furnish suitable goods shall be accompanied by such
manufacturer's implied warranty of fitness.
1792.2. (a) Every sale of consumer goods that are sold at retail in
this state by a retailer or distributor who has reason to know at
the time of the retail sale that the goods are required for a
particular purpose, and that the buyer is relying on the retailer's
or distributor's skill or judgment to select or furnish suitable
goods shall be accompanied by such retailer's or distributor's
implied warranty that the goods are fit for that purpose.
(b) Every sale of an assistive device sold at retail in this state
shall be accompanied by the retail seller's implied warranty that
the device is specifically fit for the particular needs of the buyer.
1792.3. No implied warranty of merchantability and, where
applicable, no implied warranty of fitness shall be waived, except in
the case of a sale of consumer goods on an "as is" or "with all
faults" basis where the provisions of this chapter affecting "as is"
or "with all faults" sales are strictly complied with.
1792.4. (a) No sale of goods, governed by the provisions of this
chapter, on an "as is" or "with all faults" basis, shall be effective
to disclaim the implied warranty of merchantability or, where
applicable, the implied warranty of fitness, unless a conspicuous
writing is attached to the goods which clearly informs the buyer,
prior to the sale, in simple and concise language of each of the
following:
(1) The goods are being sold on an "as is" or "with all faults"
basis.
(2) The entire risk as to the quality and performance of the goods
is with the buyer.
(3) Should the goods prove defective following their purchase, the
buyer and not the manufacturer, distributor, or retailer assumes the
entire cost of all necessary servicing or repair.
(b) In the event of sale of consumer goods by means of a mail
order catalog, the catalog offering such goods shall contain the
required writing as to each item so offered in lieu of the
requirement of notification prior to the sale.
1792.5. Every sale of goods that are governed by the provisions of
this chapter, on an "as is" or "with all faults" basis, made in
compliance with the provisions of this chapter, shall constitute a
waiver by the buyer of the implied warranty of merchantability and,
where applicable, of the implied warranty of fitness.
1793. Except as provided in Section 1793.02, nothing in this
chapter shall affect the right of the manufacturer, distributor, or
retailer to make express warranties with respect to consumer goods.
However, a manufacturer, distributor, or retailer, in transacting a
sale in which express warranties are given, may not limit, modify, or
disclaim the implied warranties guaranteed by this chapter to the
sale of consumer goods.
1793.02. (a) All new and used assistive devices sold at retail in
this state shall be accompanied by the retail seller's written
warranty which shall contain the following language: "This assistive
device is warranted to be specifically fit for the particular needs
of you, the buyer. If the device is not specifically fit for your
particular needs, it may be returned to the seller within 30 days of
the date of actual receipt by you or completion of fitting by the
seller, whichever occurs later. If you return the device, the seller
will either adjust or replace the device or promptly refund the total
amount paid. This warranty does not affect the protections and
remedies you have under other laws." In lieu of the words "30 days"
the retail seller may specify any longer period.
(b) The language prescribed in subdivision (a) shall appear on the
first page of the warranty in at least 10-point bold type. The
warranty shall be delivered to the buyer at the time of the sale of
the device.
(c) If the buyer returns the device within the period specified in
the written warranty, the seller shall, without charge and within a
reasonable time, adjust the device or, if appropriate, replace it
with a device that is specifically fit for the particular needs of
the buyer. If the seller does not adjust or replace the device so
that it is specifically fit for the particular needs of the buyer,
the seller shall promptly refund to the buyer the total amount paid,
the transaction shall be deemed rescinded, and the seller shall
promptly return to the buyer all payments and any assistive device or
other consideration exchanged as part of the transaction and shall
promptly cancel or cause to be canceled all contracts, instruments,
and security agreements executed by the buyer in connection with the
sale. When a sale is rescinded under this section, no charge,
penalty, or other fee may be imposed in connection with the purchase,
fitting, financing, or return of the device.
(d) With respect to the retail sale of an assistive device to an
individual, organization, or agency known by the seller to be
purchasing for the ultimate user of the device, this section and
subdivision (b) of Section 1792.2 shall be construed to require that
the device be specifically fit for the particular needs of the
ultimate user.
(e) This section and subdivision (b) of Section 1792.2 shall not
apply to any of the following sales of assistive devices:
(1) A catalog or similar sale, as defined in subdivision (q) of
Section 1791, except a sale of a hearing aid.
(2) A sale which involves a retail sale price of less than fifteen
dollars ($15).
(3) A surgical implant performed by a physician and surgeon, or a
restoration or dental prosthesis provided by a dentist.
(f) The rights and remedies of the buyer under this section and
subdivision (b) of Section 1792.2 are not subject to waiver under
Section 1792.3. The rights and remedies of the buyer under this
section and subdivision (b) of Section 1792.2 are cumulative, and
shall not be construed to affect the obligations of the retail seller
or any other party or to supplant the rights or remedies of the
buyer under any other section of this chapter or under any other law
or instrument.
(g) Section 1795.5 shall not apply to a sale of used assistive
devices, and for the purposes of the Song-Beverly Consumer Warranty
Act the buyer of a used assistive device shall have the same rights
and remedies as the buyer of a new assistive device.
(h) The language in subdivision (a) shall not constitute an
express warranty for purposes of Sections 1793.2 and 1793.3.
1793.025. (a) All new and used wheelchairs, including, but not
limited to, wheelchairs that are motorized or have been otherwise
customized to suit the needs of the user, shall be accompanied by the
manufacturer's or lessor's written express warranty that the
wheelchair is free of defects. The duration of the warranty shall be
for a period of at least one year from the date of the first delivery
of a new wheelchair to the consumer, or at least 60 days from the
date of the first delivery of a used, refurbished, or reconditioned
wheelchair to the consumer. If the written express warranty is not
furnished to the consumer, the wheelchair nonetheless shall be deemed
to be covered by the express warranty. This section shall not apply
to wheelchairs manufactured specifically for athletic, competitive,
or off-road use.
(b) The provisions of this chapter for express warranties govern
the express warranty described in subdivision (a), whether or not
those provisions only apply to the sale, and not the lease, of goods.
(c) A reasonable number of attempts have been made to conform a
wheelchair to the express warranty if, within the warranty period or
within one year of inception of the warranty, whichever occurs first,
(1) the same nonconformity has been subject to repair four or more
times by the manufacturer, lessor, or an agent thereof, and continues
to exist, or (2) the wheelchair is out of service by reason of
repair of nonconformities by the manufacturer, lessor, or an agent
thereof, for a cumulative total of more than 30 calendar days since
inception of the warranty.
(d) No wheelchair that has been returned to the manufacturer,
lessor, or an agent thereof, by the consumer for failure to repair a
nonconformity after a reasonable number of attempts, either in this
state or in another state pursuant to a similar statute of that
state, may be sold or leased again in this state unless the reasons
for the return are fully disclosed to the prospective buyer or
lessee.
(e) If the wheelchair is out of service for a period of at least
24 hours for the repair of a nonconformity by the manufacturer,
lessor, or agent thereof, a temporary replacement wheelchair shall be
made available to the consumer, if requested. The provider of the
temporary replacement wheelchair may not charge the consumer more
than the cost to the provider to make the wheelchair available to the
consumer. Nothing in this subdivision is intended to prevent a
consumer and a provider from negotiating an agreement in which the
provider assumes the cost of providing a temporary replacement
wheelchair to the consumer.
1793.03. (a) Every manufacturer making an express warranty with
respect to an electronic or appliance product described in
subdivision (h), (i), (j), or (k) of Section 9801 of the Business and
Professions Code, with a wholesale price to the retailer of not less
than fifty dollars ($50) and not more than ninety-nine dollars and
ninety-nine cents ($99.99), shall make available to service and
repair facilities sufficient service literature and functional parts
to effect the repair of a product for at least three years after the
date a product model or type was manufactured, regardless of whether
the three-year period exceeds the warranty period for the product.
(b) Every manufacturer making an express warranty with respect to
an electronic or appliance product described in subdivision (h), (i),
(j), or (k) of Section 9801 of the Business and Professions Code,
with a wholesale price to the retailer of one hundred dollars ($100)
or more, shall make available to service and repair facilities
sufficient service literature and functional parts to effect the
repair of a product for at least seven years after the date a product
model or type was manufactured, regardless of whether the seven-year
period exceeds the warranty period for the product
1793.05. Vehicle manufacturers who alter new vehicles into
housecars shall, in addition to any new product warranty, assume any
warranty responsibility of the original vehicle manufacturer for any
and all components of the finished product which are, by virtue of
any act of the alterer, no longer covered by the warranty issued by
the original vehicle manufacturer.
1793.1. (a) (1) Every manufacturer, distributor, or retailer making
express warranties with respect to consumer goods shall fully set
forth those warranties in simple and readily understood language,
which shall clearly identify the party making the express warranties,
and which shall conform to the federal standards for disclosure of
warranty terms and conditions set forth in the federal Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act (15 U.S.C. Sec.
2301 et seq.), and in the regulations of the Federal Trade Commission
adopted pursuant to the provisions of that act. If the manufacturer,
distributor, or retailer provides a warranty or product registration
card or form, or an electronic online warranty or product
registration form, to be completed and returned by the consumer, the
card or form shall contain statements, each displayed in a clear and
conspicuous manner, that do all of the following:
(A) Informs the consumer that the card or form is for product
registration.
(B) Informs the consumer that failure to complete and return the
card or form does not diminish his or her warranty rights.
(2) Every work order or repair invoice for warranty repairs or
service shall clearly and conspicuously incorporate in 10-point
boldface type the following statement either on the face of the work
order or repair invoice, or on the reverse side, or on an attachment
to the work order or repair invoice: "A buyer of this product in
California has the right to have this product serviced or repaired
during the warranty period. The warranty period will be extended for
the number of whole days that the product has been out of the buyer's
hands for warranty repairs. If a defect exists within the warranty
period, the warranty will not expire until the defect has been fixed.
The warranty period will also be extended if the warranty repairs
have not been performed due to delays caused by circumstances beyond
the control of the buyer, or if the warranty repairs did not remedy
the defect and the buyer notifies the manufacturer or seller of the
failure of the repairs within 60 days after they were completed. If,
after a reasonable number of attempts, the defect has not been fixed,
the buyer may return this product for a replacement or a refund
subject, in either case, to deduction of a reasonable charge for
usage. This time extension does not affect the protections or
remedies the buyer has under other laws."
If the required notice is placed on the reverse side of the work
order or repair invoice, the face of the work order or repair invoice
shall include the following notice in 10-point boldface type:
"Notice to Consumer: Please read important information on back."
A copy of the work order or repair invoice and any attachment
shall be presented to the buyer at the time that warranty service or
repairs are made.
(b) No warranty or product registration card or form, or an
electronic online warranty or product registration form, may be
labeled as a warranty registration or a warranty confirmation.
(c) The requirements imposed by this section on the distribution
of any warranty or product registration card or form, or an
electronic online warranty or product registration form, shall become
effective on January 1, 2004.
(d) This section does not apply to any warranty or product
registration card or form that was printed prior to January 1, 2004,
and was shipped or included with a product that was placed in the
stream of commerce prior to January 1, 2004.
(e) Every manufacturer, distributor, or retailer making express
warranties and who elects to maintain service and repair facilities
within this state pursuant to this chapter shall perform one or more
of the following:
(1) At the time of sale, provide the buyer with the name and
address of each service and repair facility within this state.
(2) At the time of the sale, provide the buyer with the name and
address and telephone number of a service and repair facility central
directory within this state, or the toll-free telephone number of a
service and repair facility central directory outside this state. It
shall be the duty of the central directory to provide, upon inquiry,
the name and address of the authorized service and repair facility
nearest the buyer.
(3) Maintain at the premises of retail sellers of the warrantor's
consumer goods a current listing of the warrantor's authorized
service and repair facilities, or retail sellers to whom the consumer
goods are to be returned for service and repair, whichever is
applicable, within this state. It shall be the duty of every retail
seller provided with that listing to provide, on inquiry, the name,
address, and telephone number of the nearest authorized service and
repair facility, or the retail seller to whom the consumer goods are
to be returned for service and repair, whichever is applicable.
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, do not preclude a good faith discount that 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 may 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 its 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 nonmanufacturer 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.
(e) (1) If the goods cannot practicably be serviced or repaired by
the manufacturer or its representative to conform to the applicable
express warranties because of the method of installation or because
the goods have become so affixed to real property as to become a part
thereof, the manufacturer shall either replace and install the goods
or reimburse the buyer in an amount equal to the purchase price paid
by the buyer, including installation costs, less that amount
directly attributable to use by the buyer prior to the discovery of
the nonconformity.
(2) With respect to claims arising out of deficiencies in the
construction of a new residential dwelling, paragraph (1) shall not
apply to either of the following:
(A) A product that is not a manufactured product, as defined in
subdivision (g) of Section 896.
(B) A claim against a person or entity that is not the
manufacturer that originally made the express warranty for that
manufactured product.
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.
1793.23. (a) The Legislature finds and declares all of the
following:
(1) That the expansion of state warranty laws covering new and
used cars has given important and valuable protection to consumers.
(2) That, in states without this valuable warranty protection,
used and irrepairable motor vehicles are being resold in the
marketplace without notice to the subsequent purchaser.
(3) That other states have addressed this problem by requiring
notices on the title of these vehicles or other notice procedures to
warn consumers that the motor vehicles were repurchased by a dealer
or manufacturer because the vehicle could not be repaired in a
reasonable length of time or a reasonable number of repair attempts
or the dealer or manufacturer was not willing to repair the vehicle.
(4) That these notices serve the interests of consumers who have a
right to information relevant to their buying decisions.
(5) That the disappearance of these notices upon the transfer of
title from another state to this state encourages the transport of
"lemons" to this state for sale to the drivers of this state.
(b) This section and Section 1793.24 shall be known, and may be
cited as, the Automotive Consumer Notification Act.
(c) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle registered in this state, any
other state, or a federally administered district shall, prior to
any sale, lease, or transfer of the vehicle in this state, or prior
to exporting the vehicle to another state for sale, lease, or
transfer if the vehicle was registered in this state and reacquired
pursuant to paragraph (2) of subdivision (d) of Section 1793.2, cause
the vehicle to be retitled in the name of the manufacturer, request
the Department of Motor Vehicles to inscribe the ownership
certificate with the notation "Lemon Law Buyback," and affix a decal
to the vehicle in accordance with Section 11713.12 of the Vehicle
Code if the manufacturer knew or should have known that the vehicle
is required by law to be replaced, accepted for restitution due to
the failure of the manufacturer to conform the vehicle to applicable
warranties pursuant to paragraph (2) of subdivision (d) of Section
1793.2, or accepted for restitution by the manufacturer due to the
failure of the manufacturer to conform the vehicle to warranties
required by any other applicable law of the state, any other state,
or federal law.
(d) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle in response to a request by
the buyer or lessee that the vehicle be either replaced or accepted
for restitution because the vehicle did not conform to express
warranties shall, prior to the sale, lease, or other transfer of the
vehicle, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(e) Any person, including any dealer, who acquires a motor vehicle
for resale and knows or should have known that the vehicle was
reacquired by the vehicle's manufacturer in response to a request by
the last retail owner or lessee of the vehicle that it be replaced or
accepted for restitution because the vehicle did not conform to
express warranties shall, prior to the sale, lease, or other
transfer, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(f) Any person, including any manufacturer or dealer, who sells,
leases, or transfers ownership of a motor vehicle when the vehicle's
ownership certificate is inscribed with the notation "Lemon Law
Buyback" shall, prior to the sale, lease, or ownership transfer of
the vehicle, provide the transferee with a disclosure statement
signed by the transferee that states:
"THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A DEFECT IN
THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE TO THIS
VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON LAW
BUYBACK'."
(g) The disclosure requirements in subdivisions (d), (e), and (f)
are cumulative with all other consumer notice requirements and do not
relieve any person, including any dealer or manufacturer, from
complying with any other applicable law, including any requirement of
subdivision (f) of Section 1793.22.
(h) For purposes of this section, "dealer" means any person
engaged in the business of selling, offering for sale, or negotiating
the retail sale of, a used motor vehicle or selling motor vehicles
as a broker or agent for another, including the officers, agents, and
employees of the person and any combination or association of
dealers.
1793.24. (a) The notice required in subdivisions (d) and (e) of
Section 1793.23 shall be prepared by the manufacturer of the
reacquired vehicle and shall disclose all of the following:
(1) Year, make, model, and vehicle identification number of the
vehicle.
(2) Whether the title to the vehicle has been inscribed with the
notation "Lemon Law Buyback."
(3) The nature of each nonconformity reported by the original
buyer or lessee of the vehicle.
(4) Repairs, if any, made to the vehicle in an attempt to correct
each nonconformity reported by the original buyer or lessee.
(b) The notice shall be on a form 8 1/2 x 11 inches in size and
printed in no smaller than 10-point black type on a white background.
The form shall only contain the following information prior to it
being filled out by the manufacturer:
WARRANTY BUYBACK NOTICE
(Check One)
/_/ This vehicle was repurchased by the vehicle's manufacturer
after the last retail owner or lessee requested its repurchase due to
the problem(s) listed below.
/_/ THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A
DEFECT IN THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE
TO THIS VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON
LAW BUYBACK." Under California law, the manufacturer must warrant to
you, for a one year period, that the vehicle is free of the problem
(s) listed below.
+---------------------+-------+----------+-----------+
|V.I.N. |Year |Make |Model |
+---------------------+-------+----------+-----------+
+-------------------------+------------------------+
| | Repairs Made, if any, |
| | to |
| | |
| Problem(s) Reported by | Correct Reported |
| | Problem(s) |
| Original Owner | |
| | |
| | |
| | |
+-------------------------+------------------------+
Signature of Manufacturer Date
__________________________________ ______________
Signature of Dealer(s) Date
__________________________________ ______________
__________________________________ ______________
__________________________________ ______________
Signature of Retail Buyer or Date
Lessee
__________________________________ ______________
__________________________________ ______________
(c) The manufacturer shall provide an executed copy of the notice
to the manufacturer's transferee. Each transferee, including a
dealer, to whom the motor vehicle is transferred prior to its sale to
a retail buyer or lessee shall be provided an executed copy of the
notice by the previous transferor.
1793.25. (a) Notwithstanding Part 1 (commencing with Section 6001)
of Division 2 of the Revenue and Taxation Code, the State Board of
Equalization shall reimburse the manufacturer of a new motor vehicle
for an amount equal to the sales tax which the manufacturer pays to
or for the buyer when providing a replacement vehicle pursuant to
subparagraph (A) of paragraph (2) of subdivision (d) of Section
1793.2 or includes in making restitution to the buyer pursuant to
subparagraph (B) of paragraph (2) of subdivision (d) of Section
1793.2, when satisfactory proof is provided that the retailer of the
motor vehicle for which the manufacturer is making restitution has
reported and paid the sales tax on the gross receipts from the sale
of that motor vehicle and the manufacturer provides satisfactory
proof that it has complied with subdivision (c) of Section 1793.23.
The State Board of Equalization may adopt rules and regulations to
carry out, facilitate compliance with, or prevent circumvention or
evasion of, this section.
(b) Nothing in this section shall in any way change the
application of the sales and use tax to the gross receipts and the
sales price from the sale, and the storage, use, or other
consumption, in this state or tangible personal property pursuant to
Part 1 (commencing with Section 6001) of Division 2 of the Revenue
and Taxation Code.
(c) The manufacturer's claim for reimbursement and the board's
approval or denial of the claim shall be subject to the provisions of
Article 1 (commencing with Section 6901) of Chapter 7 of Part 1 of
Division 2 of the Revenue and Taxation Code, except Sections 6902.1,
6903, 6907, and 6908 thereof, insofar as those provisions are not
inconsistent with this section.
1793.26. (a) Any automobile manufacturer, importer, distributor,
dealer, or lienholder who reacquires, or who assists in reacquiring,
a motor vehicle, whether by judgment, decree, arbitration award,
settlement agreement, or voluntary agreement, is prohibited from
doing either of the following:
(1) Requiring, as a condition of the reacquisition of the motor
vehicle, that a buyer or lessee who is a resident of this state agree
not to disclose the problems with the vehicle experienced by the
buyer or lessee or the nonfinancial terms of the reacquisition.
(2) Including, in any release or other agreement, whether prepared
by the manufacturer, importer, distributor, dealer, or lienholder,
for signature by the buyer or lessee, a confidentiality clause, gag
clause, or similar clause prohibiting the buyer or lessee from
disclosing information to anyone about the problems with the vehicle,
or the nonfinancial terms of the reacquisition of the vehicle by the
manufacturer, importer, distributor, dealer, or lienholder.
(b) Any confidentiality clause, gag clause, or similar clause in
such a release or other agreement in violation of this section shall
be null and void as against the public policy of this state.
(c) Nothing in this section is intended to prevent any
confidentiality clause, gag clause, or similar clause regarding the
financial terms of the reacquisition of the vehicle.
1793.3. If the manufacturer of consumer goods sold in this state
for which the manufacturer has made an express warranty does not
provide service and repair facilities within this state pursuant to
subdivision (a) of Section 1793.2, or does not make available to
authorized service and repair facilities service literature and
replacement parts sufficient to effect repair during the express
warranty period, the buyer of such manufacturer's nonconforming goods
may follow the course of action prescribed in either subdivision
(a), (b), or (c), below, as follows:
(a) Return the nonconforming consumer goods to the retail seller
thereof. The retail seller shall do one of the following:
(1) Service or repair the nonconforming goods to conform to the
applicable warranty.
(2) Direct the buyer to a reasonably close independent repair or
service facility willing to accept service or repair under this
section.
(3) Replace the nonconforming goods with goods that are identical
or reasonably equivalent to the warranted goods.
(4) Refund to the buyer the original purchase price less that
amount directly attributable to use by the buyer prior to the
discovery of the nonconformity.
(b) Return the nonconforming consumer goods to any retail seller
of like goods of the same manufacturer within this state who may do
one of the following:
(1) Service or repair the nonconforming goods to conform to the
applicable warranty.
(2) Direct the buyer to a reasonably close independent repair or
service facility willing to accept service or repair under this
section.
(3) Replace the nonconforming goods with goods that are identical
or reasonably equivalent to the warranted goods.
(4) Refund to the buyer the original purchase price less that
amount directly attributable to use by the buyer prior to the
discovery of the nonconformity.
(c) Secure the services of an independent repair or service
facility for the service or repair of the nonconforming consumer
goods, when service or repair of the goods can be economically
accomplished. In that event the manufacturer shall be liable to the
buyer, or to the independent repair or service facility upon an
assignment of the buyer's rights, for the actual and reasonable cost
of service and repair, including any cost for parts and any
reasonable cost of transporting the goods or parts, plus a reasonable
profit. It shall be a rebuttable presumption affecting the burden of
producing evidence that the reasonable cost of service or repair is
an amount equal to that which is charged by the independent service
dealer for like services or repairs rendered to service or repair
customers who are not entitled to warranty protection. Any waiver of
the liability of a manufacturer shall be void and unenforceable.
The course of action prescribed in this subdivision shall be
available to the buyer only after the buyer has followed the course
of action prescribed in either subdivision (a) or (b) and such course
of action has not furnished the buyer with appropriate relief. In no
event, shall the provisions of this subdivision be available to the
buyer with regard to consumer goods with a wholesale price to the
retailer of less than fifty dollars ($50). In no event shall the
buyer be responsible or liable for service or repair costs charged by
the independent repair or service facility which accepts service or
repair of nonconforming consumer goods under this section. Such
independent repair or service facility shall only be authorized to
hold the manufacturer liable for such costs.
(d) A retail seller to which any nonconforming consumer good is
returned pursuant to subdivision (a) or (b) shall have the option of
providing service or repair itself or directing the buyer to a
reasonably close independent repair or service facility willing to
accept service or repair under this section. In the event the retail
seller directs the buyer to an independent repair or service
facility, the manufacturer shall be liable for the reasonable cost of
repair services in the manner provided in subdivision (c).
(e) In the event a buyer is unable to return nonconforming goods
to the retailer due to reasons of size and weight, or method of
attachment, or method of installation, or nature of the
nonconformity, the buyer shall give notice of the nonconformity to
the retailer. Upon receipt of such notice of nonconformity the
retailer shall, at its option, service or repair the goods at the
buyer's residence, or pick up the goods for service or repair, or
arrange for transporting the goods to its place of business. The
reasonable costs of transporting the goods shall be at the retailer's
expense. The retailer shall be entitled to recover all such
reasonable costs of transportation from the manufacturer pursuant to
Section 1793.5. The reasonable costs of transporting nonconforming
goods after delivery to the retailer until return of the goods to the
buyer, when incurred by a retailer, shall be recoverable from the
manufacturer pursuant to Section 1793.5. Written notice of
nonconformity to the retailer shall constitute return of the goods
for the purposes of subdivisions (a) and (b).
(f) The manufacturer of consumer goods with a wholesale price to
the retailer of fifty dollars ($50) or more for which the
manufacturer has made express warranties shall provide written notice
to the buyer of the courses of action available to him under
subdivision (a), (b), or (c).
1793.35. (a) Where the retail sale of clothing or consumables is
accompanied by an express warranty and such items do not conform with
the terms of the express warranty, the buyer thereof may return the
goods within 30 days of purchase or the period specified in the
warranty, whichever is greater. The manufacturer may, in the express
warranty, direct the purchaser to return nonconforming goods to a
retail seller of like goods of the same manufacturer for replacement.
(b) When clothing or consumables are returned to a retail seller
for the reason that they do not conform to an express warranty, the
retailer shall replace the nonconforming goods where the manufacturer
has directed replacement in the express warranty. In the event the
manufacturer has not directed replacement in the express warranty,
the retailer may replace the nonconforming goods or reimburse the
buyer in an amount equal to the purchase price paid by the buyer for
the goods, at the option of the retailer. Costs of reimbursement or
replacement are recoverable by a retailer from the manufacturer in
the manner provided in Section 1793.5.
(c) Where the retail sale of draperies is not accompanied by an
express warranty and the sale of such draperies is accompanied by a
conspicuous writing disclaiming the retailer's implied warranty of
merchantability on the fabric, the retailer's implied warranty of
merchantability shall not apply to the fabric.
1793.4. Where an option is exercised in favor of service and repair
under Section 1793.3, such service and repair must be commenced
within a reasonable time, and, unless the buyer agrees in writing to
the contrary, goods conforming to the applicable express warranties
shall be tendered within 30 days. Delay caused by conditions beyond
the control of the retail seller or his representative shall serve to
extend this 30-day requirement. Where such a delay arises,
conforming goods shall be tendered as soon as possible following
termination of the condition giving rise to the delay.
1793.5. Every manufacturer making express warranties who does not
provide service and repair facilities within this state pursuant to
subdivision (a) of Section 1793.2 shall be liable as prescribed in
this section to every retail seller of such manufacturer's goods who
incurs obligations in giving effect to the express warranties that
accompany such manufacturer's consumer goods. The amount of such
liability shall be determined as follows:
(a) In the event of replacement, in an amount equal to the actual
cost to the retail seller of the replaced goods, and cost of
transporting the goods, if such costs are incurred plus a reasonable
handling charge.
(b) In the event of service and repair, in an amount equal to that
which would be received by the retail seller for like service
rendered to retail consumers who are not entitled to warranty
protection, including actual and reasonable costs of the service and
repair and the cost of transporting the goods, if such costs are
incurred, plus a reasonable profit.
(c) In the event of reimbursement under subdivision (a) of Section
1793.3, in an amount equal to that reimbursed to the buyer, plus a
reasonable handling charge.
1793.6. Except as otherwise provided in the terms of a warranty
service contract, as specified in subdivision (a) of Section 1793.2,
entered into between a manufacturer and an independent service and
repair facility, every manufacturer making express warranties whose
consumer goods are sold in this state shall be liable as prescribed
in this section to every independent serviceman who performs services
or incurs obligations in giving effect to the express warranties
that accompany such manufacturer's consumer goods whether the
independent serviceman is acting as an authorized service and repair
facility designated by the manufacturer pursuant to paragraph (1) of
subdivision (a) of Section 1793.2 or is acting as an independent
serviceman pursuant to subdivisions (c) and (d) of Section 1793.3.
The amount of such liability shall be an amount equal to the actual
and reasonable costs of the service and repair, including any cost
for parts and any reasonable cost of transporting the goods or parts,
plus a reasonable profit. It shall be a rebuttable presumption
affecting the burden of producing evidence that the reasonable cost
of service or repair is an amount equal to that which is charged by
the independent serviceman for like services or repairs rendered to
service or repair customers who are not entitled to warranty
protection. Any waiver of the liability of a manufacturer shall be
void and unenforceable.
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.
1794.1. (a) Any retail seller of consumer goods injured by the
willful or repeated violation of the provisions of this chapter may
bring an action for the recovery of damages. Judgment may be entered
for three times the amount at which the actual damages are assessed
plus reasonable attorney fees.
(b) Any independent serviceman of consumer goods injured by the
willful or repeated violation of the provisions of this chapter may
bring an action for the recovery of damages. Judgment may be entered
for three times the amount at which the actual damages are assessed
plus reasonable attorney fees.
1794.3. The provisions of this chapter shall not apply to any
defect or nonconformity in consumer goods caused by the unauthorized
or unreasonable use of the goods following sale.
1794.4. (a) Nothing in this chapter shall be construed to prevent
the sale of a service contract to the buyer in addition to or in lieu
of an express warranty if that contract fully and conspicuously
discloses in simple and readily understood language the terms,
conditions, and exclusions of that contract, provided that nothing in
this section shall apply to a home protection contract issued by a
home protection company that is subject to Part 7 (commencing with
Section 12740) of Division 2 of the Insurance Code.
(b) Except as otherwise expressly provided in the service
contract, every service contract shall obligate the service
contractor to provide to the buyer of the product all of the services
and functional parts that may be necessary to maintain proper
operation of the entire product under normal operation and service
for the duration of the service contract and without additional
charge.
(c) The service contract shall contain all of the following items
of information:
(1) A clear description and identification of the covered product.
(2) The point in time or event when the term of the service
contract commences, and its duration measured by elapsed time or an
objective measure of use.
(3) If the enforceability of the service contract is limited to
the original buyer or is limited to persons other than every consumer
owner of the covered product during the term of the service
contract, a description of the limits on transfer or assignment of
the service contract.
(4) A statement of the general obligation of the service
contractor in the same language set forth in subdivision (b), with
equally clear and conspicuous statements of the following:
(A) Any services, parts, characteristics, components, properties,
defects, malfunctions, causes, conditions, repairs, or remedies that
are excluded from the scope of the service contract.
(B) Any other limits on the application of the language in
subdivision (b) such as a limit on the total number of service calls.
(C) Any additional services that the service contractor will
provide.
(D) Whether the obligation of the service contractor includes
preventive maintenance and, if so, the nature and frequency of the
preventive maintenance that the service contractor will provide.
(E) Whether the buyer has an obligation to provide preventive
maintenance or perform any other obligations and, if so, the nature
and frequency of the preventive maintenance and of any other
obligations, and the consequences of any noncompliance.
(5) A step-by-step explanation of the procedure that the buyer
should follow in order to obtain performance of any obligation under
the service contract including the following:
(A) The full legal and business name of the service contractor.
(B) The mailing address of the service contractor.
(C) The persons or class of persons that are authorized to perform
service.
(D) The name or title and address of any agent, employee, or
department of the service contractor that is responsible for the
performance of any obligations.
(E) The method of giving notice to the service contractor of the
need for service.
(F) Whether in-home service is provided or, if not, whether the
costs of transporting the product, for service or repairs will be
paid by the service contractor.
(G) If the product must be transported to the service contractor,
either the place where the product may be delivered for service or
repairs or a toll-free telephone number that the buyer may call to
obtain that information.
(H) All other steps that the buyer must take to obtain service.
(I) All fees, charges, and other costs that the buyer must pay to
obtain service.
(6) An explanation of the steps that the service contractor will
take to carry out its obligations under the service contract.
(7) A description of any right to cancel the contract if the buyer
returns the product or the product is sold, lost, stolen, or
destroyed, or, if there is no right to cancel or the right to cancel
is limited, a statement of the fact.
(8) Information respecting the availability of any informal
dispute settlement process.
(d) Subdivisions (b) and (c) are applicable to service contracts
on new or used home appliances and home electronic products entered
into on or after July 1, 1989. They are applicable to service
contracts on all other new or used products entered into on and after
July 1, 1991.
(e) This section shall become operative on January 1, 2008.
1794.41. (a) No service contract covering any motor vehicle, home
appliance, or home electronic product purchased for use in this state
may be offered for sale or sold unless all of the following elements
exist:
(1) The contract shall contain the disclosures specified in
Section 1794.4 and shall disclose in the manner described in that
section the buyer's cancellation and refund rights provided by this
section.
(2) The contract shall be available for inspection by the buyer
prior to purchase and either the contract, or a brochure which
specifically describes the terms, conditions, and exclusions of the
contract, and the provisions of this section relating to contract
delivery, cancellation, and refund, shall be delivered to the buyer
at or before the time of purchase of the contract. Within 60 days
after the date of purchase, the contract itself shall be delivered to
the buyer. If a service contract for a home appliance or a home
electronic product is sold by means of a telephone solicitation, the
seller may elect to satisfy the requirements of this
1792. Unless disclaimed in the manner prescribed by this chapter,
every sale of consumer goods that are sold at retail in this state
shall be accompanied by the manufacturer's and the retail seller's
implied warranty that the goods are merchantable. The retail seller
shall have a right of indemnity against the manufacturer in the
amount of any liability under this section.
1792.1. Every sale of consumer goods that are sold at retail in
this state by a manufacturer who has reason to know at the time of
the retail sale that the goods are required for a particular purpose
and that the buyer is relying on the manufacturer's skill or judgment
to select or furnish suitable goods shall be accompanied by such
manufacturer's implied warranty of fitness.
1792.2. (a) Every sale of consumer goods that are sold at retail in
this state by a retailer or distributor who has reason to know at
the time of the retail sale that the goods are required for a
particular purpose, and that the buyer is relying on the retailer's
or distributor's skill or judgment to select or furnish suitable
goods shall be accompanied by such retailer's or distributor's
implied warranty that the goods are fit for that purpose.
(b) Every sale of an assistive device sold at retail in this state
shall be accompanied by the retail seller's implied warranty that
the device is specifically fit for the particular needs of the buyer.
1792.3. No implied warranty of merchantability and, where
applicable, no implied warranty of fitness shall be waived, except in
the case of a sale of consumer goods on an "as is" or "with all
faults" basis where the provisions of this chapter affecting "as is"
or "with all faults" sales are strictly complied with.
1792.4. (a) No sale of goods, governed by the provisions of this
chapter, on an "as is" or "with all faults" basis, shall be effective
to disclaim the implied warranty of merchantability or, where
applicable, the implied warranty of fitness, unless a conspicuous
writing is attached to the goods which clearly informs the buyer,
prior to the sale, in simple and concise language of each of the
following:
(1) The goods are being sold on an "as is" or "with all faults"
basis.
(2) The entire risk as to the quality and performance of the goods
is with the buyer.
(3) Should the goods prove defective following their purchase, the
buyer and not the manufacturer, distributor, or retailer assumes the
entire cost of all necessary servicing or repair.
(b) In the event of sale of consumer goods by means of a mail
order catalog, the catalog offering such goods shall contain the
required writing as to each item so offered in lieu of the
requirement of notification prior to the sale.
1792.5. Every sale of goods that are governed by the provisions of
this chapter, on an "as is" or "with all faults" basis, made in
compliance with the provisions of this chapter, shall constitute a
waiver by the buyer of the implied warranty of merchantability and,
where applicable, of the implied warranty of fitness.
1793. Except as provided in Section 1793.02, nothing in this
chapter shall affect the right of the manufacturer, distributor, or
retailer to make express warranties with respect to consumer goods.
However, a manufacturer, distributor, or retailer, in transacting a
sale in which express warranties are given, may not limit, modify, or
disclaim the implied warranties guaranteed by this chapter to the
sale of consumer goods.
1793.02. (a) All new and used assistive devices sold at retail in
this state shall be accompanied by the retail seller's written
warranty which shall contain the following language: "This assistive
device is warranted to be specifically fit for the particular needs
of you, the buyer. If the device is not specifically fit for your
particular needs, it may be returned to the seller within 30 days of
the date of actual receipt by you or completion of fitting by the
seller, whichever occurs later. If you return the device, the seller
will either adjust or replace the device or promptly refund the total
amount paid. This warranty does not affect the protections and
remedies you have under other laws." In lieu of the words "30 days"
the retail seller may specify any longer period.
(b) The language prescribed in subdivision (a) shall appear on the
first page of the warranty in at least 10-point bold type. The
warranty shall be delivered to the buyer at the time of the sale of
the device.
(c) If the buyer returns the device within the period specified in
the written warranty, the seller shall, without charge and within a
reasonable time, adjust the device or, if appropriate, replace it
with a device that is specifically fit for the particular needs of
the buyer. If the seller does not adjust or replace the device so
that it is specifically fit for the particular needs of the buyer,
the seller shall promptly refund to the buyer the total amount paid,
the transaction shall be deemed rescinded, and the seller shall
promptly return to the buyer all payments and any assistive device or
other consideration exchanged as part of the transaction and shall
promptly cancel or cause to be canceled all contracts, instruments,
and security agreements executed by the buyer in connection with the
sale. When a sale is rescinded under this section, no charge,
penalty, or other fee may be imposed in connection with the purchase,
fitting, financing, or return of the device.
(d) With respect to the retail sale of an assistive device to an
individual, organization, or agency known by the seller to be
purchasing for the ultimate user of the device, this section and
subdivision (b) of Section 1792.2 shall be construed to require that
the device be specifically fit for the particular needs of the
ultimate user.
(e) This section and subdivision (b) of Section 1792.2 shall not
apply to any of the following sales of assistive devices:
(1) A catalog or similar sale, as defined in subdivision (q) of
Section 1791, except a sale of a hearing aid.
(2) A sale which involves a retail sale price of less than fifteen
dollars ($15).
(3) A surgical implant performed by a physician and surgeon, or a
restoration or dental prosthesis provided by a dentist.
(f) The rights and remedies of the buyer under this section and
subdivision (b) of Section 1792.2 are not subject to waiver under
Section 1792.3. The rights and remedies of the buyer under this
section and subdivision (b) of Section 1792.2 are cumulative, and
shall not be construed to affect the obligations of the retail seller
or any other party or to supplant the rights or remedies of the
buyer under any other section of this chapter or under any other law
or instrument.
(g) Section 1795.5 shall not apply to a sale of used assistive
devices, and for the purposes of the Song-Beverly Consumer Warranty
Act the buyer of a used assistive device shall have the same rights
and remedies as the buyer of a new assistive device.
(h) The language in subdivision (a) shall not constitute an
express warranty for purposes of Sections 1793.2 and 1793.3.
1793.025. (a) All new and used wheelchairs, including, but not
limited to, wheelchairs that are motorized or have been otherwise
customized to suit the needs of the user, shall be accompanied by the
manufacturer's or lessor's written express warranty that the
wheelchair is free of defects. The duration of the warranty shall be
for a period of at least one year from the date of the first delivery
of a new wheelchair to the consumer, or at least 60 days from the
date of the first delivery of a used, refurbished, or reconditioned
wheelchair to the consumer. If the written express warranty is not
furnished to the consumer, the wheelchair nonetheless shall be deemed
to be covered by the express warranty. This section shall not apply
to wheelchairs manufactured specifically for athletic, competitive,
or off-road use.
(b) The provisions of this chapter for express warranties govern
the express warranty described in subdivision (a), whether or not
those provisions only apply to the sale, and not the lease, of goods.
(c) A reasonable number of attempts have been made to conform a
wheelchair to the express warranty if, within the warranty period or
within one year of inception of the warranty, whichever occurs first,
(1) the same nonconformity has been subject to repair four or more
times by the manufacturer, lessor, or an agent thereof, and continues
to exist, or (2) the wheelchair is out of service by reason of
repair of nonconformities by the manufacturer, lessor, or an agent
thereof, for a cumulative total of more than 30 calendar days since
inception of the warranty.
(d) No wheelchair that has been returned to the manufacturer,
lessor, or an agent thereof, by the consumer for failure to repair a
nonconformity after a reasonable number of attempts, either in this
state or in another state pursuant to a similar statute of that
state, may be sold or leased again in this state unless the reasons
for the return are fully disclosed to the prospective buyer or
lessee.
(e) If the wheelchair is out of service for a period of at least
24 hours for the repair of a nonconformity by the manufacturer,
lessor, or agent thereof, a temporary replacement wheelchair shall be
made available to the consumer, if requested. The provider of the
temporary replacement wheelchair may not charge the consumer more
than the cost to the provider to make the wheelchair available to the
consumer. Nothing in this subdivision is intended to prevent a
consumer and a provider from negotiating an agreement in which the
provider assumes the cost of providing a temporary replacement
wheelchair to the consumer.
1793.03. (a) Every manufacturer making an express warranty with
respect to an electronic or appliance product described in
subdivision (h), (i), (j), or (k) of Section 9801 of the Business and
Professions Code, with a wholesale price to the retailer of not less
than fifty dollars ($50) and not more than ninety-nine dollars and
ninety-nine cents ($99.99), shall make available to service and
repair facilities sufficient service literature and functional parts
to effect the repair of a product for at least three years after the
date a product model or type was manufactured, regardless of whether
the three-year period exceeds the warranty period for the product.
(b) Every manufacturer making an express warranty with respect to
an electronic or appliance product described in subdivision (h), (i),
(j), or (k) of Section 9801 of the Business and Professions Code,
with a wholesale price to the retailer of one hundred dollars ($100)
or more, shall make available to service and repair facilities
sufficient service literature and functional parts to effect the
repair of a product for at least seven years after the date a product
model or type was manufactured, regardless of whether the seven-year
period exceeds the warranty period for the product
1793.05. Vehicle manufacturers who alter new vehicles into
housecars shall, in addition to any new product warranty, assume any
warranty responsibility of the original vehicle manufacturer for any
and all components of the finished product which are, by virtue of
any act of the alterer, no longer covered by the warranty issued by
the original vehicle manufacturer.
1793.1. (a) (1) Every manufacturer, distributor, or retailer making
express warranties with respect to consumer goods shall fully set
forth those warranties in simple and readily understood language,
which shall clearly identify the party making the express warranties,
and which shall conform to the federal standards for disclosure of
warranty terms and conditions set forth in the federal Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act (15 U.S.C. Sec.
2301 et seq.), and in the regulations of the Federal Trade Commission
adopted pursuant to the provisions of that act. If the manufacturer,
distributor, or retailer provides a warranty or product registration
card or form, or an electronic online warranty or product
registration form, to be completed and returned by the consumer, the
card or form shall contain statements, each displayed in a clear and
conspicuous manner, that do all of the following:
(A) Informs the consumer that the card or form is for product
registration.
(B) Informs the consumer that failure to complete and return the
card or form does not diminish his or her warranty rights.
(2) Every work order or repair invoice for warranty repairs or
service shall clearly and conspicuously incorporate in 10-point
boldface type the following statement either on the face of the work
order or repair invoice, or on the reverse side, or on an attachment
to the work order or repair invoice: "A buyer of this product in
California has the right to have this product serviced or repaired
during the warranty period. The warranty period will be extended for
the number of whole days that the product has been out of the buyer's
hands for warranty repairs. If a defect exists within the warranty
period, the warranty will not expire until the defect has been fixed.
The warranty period will also be extended if the warranty repairs
have not been performed due to delays caused by circumstances beyond
the control of the buyer, or if the warranty repairs did not remedy
the defect and the buyer notifies the manufacturer or seller of the
failure of the repairs within 60 days after they were completed. If,
after a reasonable number of attempts, the defect has not been fixed,
the buyer may return this product for a replacement or a refund
subject, in either case, to deduction of a reasonable charge for
usage. This time extension does not affect the protections or
remedies the buyer has under other laws."
If the required notice is placed on the reverse side of the work
order or repair invoice, the face of the work order or repair invoice
shall include the following notice in 10-point boldface type:
"Notice to Consumer: Please read important information on back."
A copy of the work order or repair invoice and any attachment
shall be presented to the buyer at the time that warranty service or
repairs are made.
(b) No warranty or product registration card or form, or an
electronic online warranty or product registration form, may be
labeled as a warranty registration or a warranty confirmation.
(c) The requirements imposed by this section on the distribution
of any warranty or product registration card or form, or an
electronic online warranty or product registration form, shall become
effective on January 1, 2004.
(d) This section does not apply to any warranty or product
registration card or form that was printed prior to January 1, 2004,
and was shipped or included with a product that was placed in the
stream of commerce prior to January 1, 2004.
(e) Every manufacturer, distributor, or retailer making express
warranties and who elects to maintain service and repair facilities
within this state pursuant to this chapter shall perform one or more
of the following:
(1) At the time of sale, provide the buyer with the name and
address of each service and repair facility within this state.
(2) At the time of the sale, provide the buyer with the name and
address and telephone number of a service and repair facility central
directory within this state, or the toll-free telephone number of a
service and repair facility central directory outside this state. It
shall be the duty of the central directory to provide, upon inquiry,
the name and address of the authorized service and repair facility
nearest the buyer.
(3) Maintain at the premises of retail sellers of the warrantor's
consumer goods a current listing of the warrantor's authorized
service and repair facilities, or retail sellers to whom the consumer
goods are to be returned for service and repair, whichever is
applicable, within this state. It shall be the duty of every retail
seller provided with that listing to provide, on inquiry, the name,
address, and telephone number of the nearest authorized service and
repair facility, or the retail seller to whom the consumer goods are
to be returned for service and repair, whichever is applicable.
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, do not preclude a good faith discount that 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 may 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 its 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 nonmanufacturer 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.
(e) (1) If the goods cannot practicably be serviced or repaired by
the manufacturer or its representative to conform to the applicable
express warranties because of the method of installation or because
the goods have become so affixed to real property as to become a part
thereof, the manufacturer shall either replace and install the goods
or reimburse the buyer in an amount equal to the purchase price paid
by the buyer, including installation costs, less that amount
directly attributable to use by the buyer prior to the discovery of
the nonconformity.
(2) With respect to claims arising out of deficiencies in the
construction of a new residential dwelling, paragraph (1) shall not
apply to either of the following:
(A) A product that is not a manufactured product, as defined in
subdivision (g) of Section 896.
(B) A claim against a person or entity that is not the
manufacturer that originally made the express warranty for that
manufactured product.
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.
1793.23. (a) The Legislature finds and declares all of the
following:
(1) That the expansion of state warranty laws covering new and
used cars has given important and valuable protection to consumers.
(2) That, in states without this valuable warranty protection,
used and irrepairable motor vehicles are being resold in the
marketplace without notice to the subsequent purchaser.
(3) That other states have addressed this problem by requiring
notices on the title of these vehicles or other notice procedures to
warn consumers that the motor vehicles were repurchased by a dealer
or manufacturer because the vehicle could not be repaired in a
reasonable length of time or a reasonable number of repair attempts
or the dealer or manufacturer was not willing to repair the vehicle.
(4) That these notices serve the interests of consumers who have a
right to information relevant to their buying decisions.
(5) That the disappearance of these notices upon the transfer of
title from another state to this state encourages the transport of
"lemons" to this state for sale to the drivers of this state.
(b) This section and Section 1793.24 shall be known, and may be
cited as, the Automotive Consumer Notification Act.
(c) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle registered in this state, any
other state, or a federally administered district shall, prior to
any sale, lease, or transfer of the vehicle in this state, or prior
to exporting the vehicle to another state for sale, lease, or
transfer if the vehicle was registered in this state and reacquired
pursuant to paragraph (2) of subdivision (d) of Section 1793.2, cause
the vehicle to be retitled in the name of the manufacturer, request
the Department of Motor Vehicles to inscribe the ownership
certificate with the notation "Lemon Law Buyback," and affix a decal
to the vehicle in accordance with Section 11713.12 of the Vehicle
Code if the manufacturer knew or should have known that the vehicle
is required by law to be replaced, accepted for restitution due to
the failure of the manufacturer to conform the vehicle to applicable
warranties pursuant to paragraph (2) of subdivision (d) of Section
1793.2, or accepted for restitution by the manufacturer due to the
failure of the manufacturer to conform the vehicle to warranties
required by any other applicable law of the state, any other state,
or federal law.
(d) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle in response to a request by
the buyer or lessee that the vehicle be either replaced or accepted
for restitution because the vehicle did not conform to express
warranties shall, prior to the sale, lease, or other transfer of the
vehicle, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(e) Any person, including any dealer, who acquires a motor vehicle
for resale and knows or should have known that the vehicle was
reacquired by the vehicle's manufacturer in response to a request by
the last retail owner or lessee of the vehicle that it be replaced or
accepted for restitution because the vehicle did not conform to
express warranties shall, prior to the sale, lease, or other
transfer, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(f) Any person, including any manufacturer or dealer, who sells,
leases, or transfers ownership of a motor vehicle when the vehicle's
ownership certificate is inscribed with the notation "Lemon Law
Buyback" shall, prior to the sale, lease, or ownership transfer of
the vehicle, provide the transferee with a disclosure statement
signed by the transferee that states:
"THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A DEFECT IN
THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE TO THIS
VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON LAW
BUYBACK'."
(g) The disclosure requirements in subdivisions (d), (e), and (f)
are cumulative with all other consumer notice requirements and do not
relieve any person, including any dealer or manufacturer, from
complying with any other applicable law, including any requirement of
subdivision (f) of Section 1793.22.
(h) For purposes of this section, "dealer" means any person
engaged in the business of selling, offering for sale, or negotiating
the retail sale of, a used motor vehicle or selling motor vehicles
as a broker or agent for another, including the officers, agents, and
employees of the person and any combination or association of
dealers.
1793.24. (a) The notice required in subdivisions (d) and (e) of
Section 1793.23 shall be prepared by the manufacturer of the
reacquired vehicle and shall disclose all of the following:
(1) Year, make, model, and vehicle identification number of the
vehicle.
(2) Whether the title to the vehicle has been inscribed with the
notation "Lemon Law Buyback."
(3) The nature of each nonconformity reported by the original
buyer or lessee of the vehicle.
(4) Repairs, if any, made to the vehicle in an attempt to correct
each nonconformity reported by the original buyer or lessee.
(b) The notice shall be on a form 8 1/2 x 11 inches in size and
printed in no smaller than 10-point black type on a white background.
The form shall only contain the following information prior to it
being filled out by the manufacturer:
WARRANTY BUYBACK NOTICE
(Check One)
/_/ This vehicle was repurchased by the vehicle's manufacturer
after the last retail owner or lessee requested its repurchase due to
the problem(s) listed below.
/_/ THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A
DEFECT IN THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE
TO THIS VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON
LAW BUYBACK." Under California law, the manufacturer must warrant to
you, for a one year period, that the vehicle is free of the problem
(s) listed below.
+---------------------+-------+----------+-----------+
|V.I.N. |Year |Make |Model |
+---------------------+-------+----------+-----------+
+-------------------------+------------------------+
| | Repairs Made, if any, |
| | to |
| | |
| Problem(s) Reported by | Correct Reported |
| | Problem(s) |
| Original Owner | |
| | |
| | |
| | |
+-------------------------+------------------------+
Signature of Manufacturer Date
__________________________________ ______________
Signature of Dealer(s) Date
__________________________________ ______________
__________________________________ ______________
__________________________________ ______________
Signature of Retail Buyer or Date
Lessee
__________________________________ ______________
__________________________________ ______________
(c) The manufacturer shall provide an executed copy of the notice
to the manufacturer's transferee. Each transferee, including a
dealer, to whom the motor vehicle is transferred prior to its sale to
a retail buyer or lessee shall be provided an executed copy of the
notice by the previous transferor.
1793.25. (a) Notwithstanding Part 1 (commencing with Section 6001)
of Division 2 of the Revenue and Taxation Code, the State Board of
Equalization shall reimburse the manufacturer of a new motor vehicle
for an amount equal to the sales tax which the manufacturer pays to
or for the buyer when providing a replacement vehicle pursuant to
subparagraph (A) of paragraph (2) of subdivision (d) of Section
1793.2 or includes in making restitution to the buyer pursuant to
subparagraph (B) of paragraph (2) of subdivision (d) of Section
1793.2, when satisfactory proof is provided that the retailer of the
motor vehicle for which the manufacturer is making restitution has
reported and paid the sales tax on the gross receipts from the sale
of that motor vehicle and the manufacturer provides satisfactory
proof that it has complied with subdivision (c) of Section 1793.23.
The State Board of Equalization may adopt rules and regulations to
carry out, facilitate compliance with, or prevent circumvention or
evasion of, this section.
(b) Nothing in this section shall in any way change the
application of the sales and use tax to the gross receipts and the
sales price from the sale, and the storage, use, or other
consumption, in this state or tangible personal property pursuant to
Part 1 (commencing with Section 6001) of Division 2 of the Revenue
and Taxation Code.
(c) The manufacturer's claim for reimbursement and the board's
approval or denial of the claim shall be subject to the provisions of
Article 1 (commencing with Section 6901) of Chapter 7 of Part 1 of
Division 2 of the Revenue and Taxation Code, except Sections 6902.1,
6903, 6907, and 6908 thereof, insofar as those provisions are not
inconsistent with this section.
1793.26. (a) Any automobile manufacturer, importer, distributor,
dealer, or lienholder who reacquires, or who assists in reacquiring,
a motor vehicle, whether by judgment, decree, arbitration award,
settlement agreement, or voluntary agreement, is prohibited from
doing either of the following:
(1) Requiring, as a condition of the reacquisition of the motor
vehicle, that a buyer or lessee who is a resident of this state agree
not to disclose the problems with the vehicle experienced by the
buyer or lessee or the nonfinancial terms of the reacquisition.
(2) Including, in any release or other agreement, whether prepared
by the manufacturer, importer, distributor, dealer, or lienholder,
for signature by the buyer or lessee, a confidentiality clause, gag
clause, or similar clause prohibiting the buyer or lessee from
disclosing information to anyone about the problems with the vehicle,
or the nonfinancial terms of the reacquisition of the vehicle by the
manufacturer, importer, distributor, dealer, or lienholder.
(b) Any confidentiality clause, gag clause, or similar clause in
such a release or other agreement in violation of this section shall
be null and void as against the public policy of this state.
(c) Nothing in this section is intended to prevent any
confidentiality clause, gag clause, or similar clause regarding the
financial terms of the reacquisition of the vehicle.
1793.3. If the manufacturer of consumer goods sold in this state
for which the manufacturer has made an express warranty does not
provide service and repair facilities within this state pursuant to
subdivision (a) of Section 1793.2, or does not make available to
authorized service and repair facilities service literature and
replacement parts sufficient to effect repair during the express
warranty period, the buyer of such manufacturer's nonconforming goods
may follow the course of action prescribed in either subdivision
(a), (b), or (c), below, as follows:
(a) Return the nonconforming consumer goods to the retail seller
thereof. The retail seller shall do one of the following:
(1) Service or repair the nonconforming goods to conform to the
applicable warranty.
(2) Direct the buyer to a reasonably close independent repair or
service facility willing to accept service or repair under this
section.
(3) Replace the nonconforming goods with goods that are identical
or reasonably equivalent to the warranted goods.
(4) Refund to the buyer the original purchase price less that
amount directly attributable to use by the buyer prior to the
discovery of the nonconformity.
(b) Return the nonconforming consumer goods to any retail seller
of like goods of the same manufacturer within this state who may do
one of the following:
(1) Service or repair the nonconforming goods to conform to the
applicable warranty.
(2) Direct the buyer to a reasonably close independent repair or
service facility willing to accept service or repair under this
section.
(3) Replace the nonconforming goods with goods that are identical
or reasonably equivalent to the warranted goods.
(4) Refund to the buyer the original purchase price less that
amount directly attributable to use by the buyer prior to the
discovery of the nonconformity.
(c) Secure the services of an independent repair or service
facility for the service or repair of the nonconforming consumer
goods, when service or repair of the goods can be economically
accomplished. In that event the manufacturer shall be liable to the
buyer, or to the independent repair or service facility upon an
assignment of the buyer's rights, for the actual and reasonable cost
of service and repair, including any cost for parts and any
reasonable cost of transporting the goods or parts, plus a reasonable
profit. It shall be a rebuttable presumption affecting the burden of
producing evidence that the reasonable cost of service or repair is
an amount equal to that which is charged by the independent service
dealer for like services or repairs rendered to service or repair
customers who are not entitled to warranty protection. Any waiver of
the liability of a manufacturer shall be void and unenforceable.
The course of action prescribed in this subdivision shall be
available to the buyer only after the buyer has followed the course
of action prescribed in either subdivision (a) or (b) and such course
of action has not furnished the buyer with appropriate relief. In no
event, shall the provisions of this subdivision be available to the
buyer with regard to consumer goods with a wholesale price to the
retailer of less than fifty dollars ($50). In no event shall the
buyer be responsible or liable for service or repair costs charged by
the independent repair or service facility which accepts service or
repair of nonconforming consumer goods under this section. Such
independent repair or service facility shall only be authorized to
hold the manufacturer liable for such costs.
(d) A retail seller to which any nonconforming consumer good is
returned pursuant to subdivision (a) or (b) shall have the option of
providing service or repair itself or directing the buyer to a
reasonably close independent repair or service facility willing to
accept service or repair under this section. In the event the retail
seller directs the buyer to an independent repair or service
facility, the manufacturer shall be liable for the reasonable cost of
repair services in the manner provided in subdivision (c).
(e) In the event a buyer is unable to return nonconforming goods
to the retailer due to reasons of size and weight, or method of
attachment, or method of installation, or nature of the
nonconformity, the buyer shall give notice of the nonconformity to
the retailer. Upon receipt of such notice of nonconformity the
retailer shall, at its option, service or repair the goods at the
buyer's residence, or pick up the goods for service or repair, or
arrange for transporting the goods to its place of business. The
reasonable costs of transporting the goods shall be at the retailer's
expense. The retailer shall be entitled to recover all such
reasonable costs of transportation from the manufacturer pursuant to
Section 1793.5. The reasonable costs of transporting nonconforming
goods after delivery to the retailer until return of the goods to the
buyer, when incurred by a retailer, shall be recoverable from the
manufacturer pursuant to Section 1793.5. Written notice of
nonconformity to the retailer shall constitute return of the goods
for the purposes of subdivisions (a) and (b).
(f) The manufacturer of consumer goods with a wholesale price to
the retailer of fifty dollars ($50) or more for which the
manufacturer has made express warranties shall provide written notice
to the buyer of the courses of action available to him under
subdivision (a), (b), or (c).
1793.35. (a) Where the retail sale of clothing or consumables is
accompanied by an express warranty and such items do not conform with
the terms of the express warranty, the buyer thereof may return the
goods within 30 days of purchase or the period specified in the
warranty, whichever is greater. The manufacturer may, in the express
warranty, direct the purchaser to return nonconforming goods to a
retail seller of like goods of the same manufacturer for replacement.
(b) When clothing or consumables are returned to a retail seller
for the reason that they do not conform to an express warranty, the
retailer shall replace the nonconforming goods where the manufacturer
has directed replacement in the express warranty. In the event the
manufacturer has not directed replacement in the express warranty,
the retailer may replace the nonconforming goods or reimburse the
buyer in an amount equal to the purchase price paid by the buyer for
the goods, at the option of the retailer. Costs of reimbursement or
replacement are recoverable by a retailer from the manufacturer in
the manner provided in Section 1793.5.
(c) Where the retail sale of draperies is not accompanied by an
express warranty and the sale of such draperies is accompanied by a
conspicuous writing disclaiming the retailer's implied warranty of
merchantability on the fabric, the retailer's implied warranty of
merchantability shall not apply to the fabric.
1793.4. Where an option is exercised in favor of service and repair
under Section 1793.3, such service and repair must be commenced
within a reasonable time, and, unless the buyer agrees in writing to
the contrary, goods conforming to the applicable express warranties
shall be tendered within 30 days. Delay caused by conditions beyond
the control of the retail seller or his representative shall serve to
extend this 30-day requirement. Where such a delay arises,
conforming goods shall be tendered as soon as possible following
termination of the condition giving rise to the delay.
1793.5. Every manufacturer making express warranties who does not
provide service and repair facilities within this state pursuant to
subdivision (a) of Section 1793.2 shall be liable as prescribed in
this section to every retail seller of such manufacturer's goods who
incurs obligations in giving effect to the express warranties that
accompany such manufacturer's consumer goods. The amount of such
liability shall be determined as follows:
(a) In the event of replacement, in an amount equal to the actual
cost to the retail seller of the replaced goods, and cost of
transporting the goods, if such costs are incurred plus a reasonable
handling charge.
(b) In the event of service and repair, in an amount equal to that
which would be received by the retail seller for like service
rendered to retail consumers who are not entitled to warranty
protection, including actual and reasonable costs of the service and
repair and the cost of transporting the goods, if such costs are
incurred, plus a reasonable profit.
(c) In the event of reimbursement under subdivision (a) of Section
1793.3, in an amount equal to that reimbursed to the buyer, plus a
reasonable handling charge.
1793.6. Except as otherwise provided in the terms of a warranty
service contract, as specified in subdivision (a) of Section 1793.2,
entered into between a manufacturer and an independent service and
repair facility, every manufacturer making express warranties whose
consumer goods are sold in this state shall be liable as prescribed
in this section to every independent serviceman who performs services
or incurs obligations in giving effect to the express warranties
that accompany such manufacturer's consumer goods whether the
independent serviceman is acting as an authorized service and repair
facility designated by the manufacturer pursuant to paragraph (1) of
subdivision (a) of Section 1793.2 or is acting as an independent
serviceman pursuant to subdivisions (c) and (d) of Section 1793.3.
The amount of such liability shall be an amount equal to the actual
and reasonable costs of the service and repair, including any cost
for parts and any reasonable cost of transporting the goods or parts,
plus a reasonable profit. It shall be a rebuttable presumption
affecting the burden of producing evidence that the reasonable cost
of service or repair is an amount equal to that which is charged by
the independent serviceman for like services or repairs rendered to
service or repair customers who are not entitled to warranty
protection. Any waiver of the liability of a manufacturer shall be
void and unenforceable.
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.
1794.1. (a) Any retail seller of consumer goods injured by the
willful or repeated violation of the provisions of this chapter may
bring an action for the recovery of damages. Judgment may be entered
for three times the amount at which the actual damages are assessed
plus reasonable attorney fees.
(b) Any independent serviceman of consumer goods injured by the
willful or repeated violation of the provisions of this chapter may
bring an action for the recovery of damages. Judgment may be entered
for three times the amount at which the actual damages are assessed
plus reasonable attorney fees.
1794.3. The provisions of this chapter shall not apply to any
defect or nonconformity in consumer goods caused by the unauthorized
or unreasonable use of the goods following sale.
1794.4. (a) Nothing in this chapter shall be construed to prevent
the sale of a service contract to the buyer in addition to or in lieu
of an express warranty if that contract fully and conspicuously
discloses in simple and readily understood language the terms,
conditions, and exclusions of that contract, provided that nothing in
this section shall apply to a home protection contract issued by a
home protection company that is subject to Part 7 (commencing with
Section 12740) of Division 2 of the Insurance Code.
(b) Except as otherwise expressly provided in the service
contract, every service contract shall obligate the service
contractor to provide to the buyer of the product all of the services
and functional parts that may be necessary to maintain proper
operation of the entire product under normal operation and service
for the duration of the service contract and without additional
charge.
(c) The service contract shall contain all of the following items
of information:
(1) A clear description and identification of the covered product.
(2) The point in time or event when the term of the service
contract commences, and its duration measured by elapsed time or an
objective measure of use.
(3) If the enforceability of the service contract is limited to
the original buyer or is limited to persons other than every consumer
owner of the covered product during the term of the service
contract, a description of the limits on transfer or assignment of
the service contract.
(4) A statement of the general obligation of the service
contractor in the same language set forth in subdivision (b), with
equally clear and conspicuous statements of the following:
(A) Any services, parts, characteristics, components, properties,
defects, malfunctions, causes, conditions, repairs, or remedies that
are excluded from the scope of the service contract.
(B) Any other limits on the application of the language in
subdivision (b) such as a limit on the total number of service calls.
(C) Any additional services that the service contractor will
provide.
(D) Whether the obligation of the service contractor includes
preventive maintenance and, if so, the nature and frequency of the
preventive maintenance that the service contractor will provide.
(E) Whether the buyer has an obligation to provide preventive
maintenance or perform any other obligations and, if so, the nature
and frequency of the preventive maintenance and of any other
obligations, and the consequences of any noncompliance.
(5) A step-by-step explanation of the procedure that the buyer
should follow in order to obtain performance of any obligation under
the service contract including the following:
(A) The full legal and business name of the service contractor.
(B) The mailing address of the service contractor.
(C) The persons or class of persons that are authorized to perform
service.
(D) The name or title and address of any agent, employee, or
department of the service contractor that is responsible for the
performance of any obligations.
(E) The method of giving notice to the service contractor of the
need for service.
(F) Whether in-home service is provided or, if not, whether the
costs of transporting the product, for service or repairs will be
paid by the service contractor.
(G) If the product must be transported to the service contractor,
either the place where the product may be delivered for service or
repairs or a toll-free telephone number that the buyer may call to
obtain that information.
(H) All other steps that the buyer must take to obtain service.
(I) All fees, charges, and other costs that the buyer must pay to
obtain service.
(6) An explanation of the steps that the service contractor will
take to carry out its obligations under the service contract.
(7) A description of any right to cancel the contract if the buyer
returns the product or the product is sold, lost, stolen, or
destroyed, or, if there is no right to cancel or the right to cancel
is limited, a statement of the fact.
(8) Information respecting the availability of any informal
dispute settlement process.
(d) Subdivisions (b) and (c) are applicable to service contracts
on new or used home appliances and home electronic products entered
into on or after July 1, 1989. They are applicable to service
contracts on all other new or used products entered into on and after
July 1, 1991.
(e) This section shall become operative on January 1, 2008.
1794.41. (a) No service contract covering any motor vehicle, home
appliance, or home electronic product purchased for use in this state
may be offered for sale or sold unless all of the following elements
exist:
(1) The contract shall contain the disclosures specified in
Section 1794.4 and shall disclose in the manner described in that
section the buyer's cancellation and refund rights provided by this
section.
(2) The contract shall be available for inspection by the buyer
prior to purchase and either the contract, or a brochure which
specifically describes the terms, conditions, and exclusions of the
contract, and the provisions of this section relating to contract
delivery, cancellation, and refund, shall be delivered to the buyer
at or before the time of purchase of the contract. Within 60 days
after the date of purchase, the contract itself shall be delivered to
the buyer. If a service contract for a home appliance or a home
electronic product is sold by means of a telephone solicitation, the
seller may elect to satisfy the requirements of this
