3

Hypo...

Bob buys a vehicle for $20,000 with a balance on the new vehicle warranty from the manufacturer; however, soon finds out that the engine, the AC and the radio do not conform to the written promises having created an express warranty and/or to the sample vehicle in their utility or performance intermittently.

Learning about them at different times, Bob permits a reasonable repair opportunity to the service and repair facility of the manufacturer for each nonconformities during the term of the applicable express warranties. The manufacturer fails to repair them, say, the manufacturer alleged it could not replicate them -- which may or may not be a willful violation depending on many factors.

However, this repeats a total of 16 times -- each nonconformity 4 times on 16 different drop-off/pickup locations and/or dates for warranty repairs with the manufacturer -- with each of these not seriously injurious or deadly nonconformities on their last repair opportunity for each respectively are acknowledged, confirmed, but left unrepaired which, in turn, places an affirmative statutory duty upon the manufacturer to replace the vehicle or make restitution therefor less the mileage per the offset formula of the Act. The manufacturer fails to comply with any one of them and offers no redress after either one of the nonconformities and omits to replace or make restitution for the vehicle after any one of the nonconformities, in fact, it does for more than 30 days after the 16th and last repair attempt.

Interpretation...

Accordingly, I don't have much doubt with the repeated and consistent use of the independent determiner "a" in §1793(c) and 1794(e)(1) determining the words "civil penalty" implying no limitation in the number of civil penalties assessable in the same suit for non-same causes of action or for not the same reason; however, I'm unsure about one thing:

Since the actual damages (§1793(c) or damages (§1794(e)(1) with the vehicle unprepared imposing a replace-or-buyback duty on the manufacturer, would be at least the original moneys less the statutory mileage offset ("Damages"), and since each imposed such duty (i) due to different nonconformities and (ii) attempted to be repaired at different times, and since (Ghory) that should mean that Damages would be the basis of seeking up to 2 times civil penalties for each and neither one of them would limit the allowable extent of another other than for Constitutional upper limits for "cruel" and/or "excessive" fines analogous to punitive damages (Kwan) as that would vitiate a manufacturer's incentive to comply with warranty service and repair duties after once reaching a replace-or-buyback duty for any one nonconformity as well as 2 times civil penalties, considering how rare they are ordered assess, it would hardly achieve its objective otherwise (Kwan).

Question rehearsed...

In this fact pattern, despite no apparent case law for the situation: May up to 2 times civil penalties be ordered payable upon the manufacturer to Bob based on the actual damages being in each case all the monies agreed upon as part of the purchase or lease? In other words: Can Bob be awarded 8 times the civil penalties and assess a total of $180,000 in theory? That is: Is there statutory or case law that bars this scenario other than a potential argument on the grounds of or as a result of inquiry into the reasonableness?

Background

Statutes

§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

§1794. (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".

§1794. (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.

§1794. (e)(5) "If the buyer recovers a civil penalty under subdivision (c), the buyer may not also recover a civil penalty under this subdivision [(e)] for the same violation."

§1793.23. (a) The Legislature finds and declares all of the following: paragraph (1) That the expansion of state warranty laws covering new and used cars has given important and valuable protection to consumers.

Authorities

“In construing a statute, the court's fundamental task is to ascertain the intent of the Legislature so as to effectuate the purpose of the law” (Calatayud v. State of California (1998) 18 Cal. 4th 1057, 1064, 77 Cal. Rptr. 2d 202, 959 P.2d 360.)"

"Interpretations that would significantly vitiate a manufacturer's incentive to comply with the Act should be avoided." (Jiagbogu, supra, 118 Cal.App.4th at p. 1244.)

“[T]he policy repeatedly expressed by the California courts of the need to construe the Song-Beverly Act so as to implement the legislative intent to expand consumer protection and remedies. (See, e.g., Murillo v. Fleetwood Enterprises, Inc., supra, 17 Cal.4th at p. 990; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184 [ 28 Cal.Rptr.2d 371].)” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1311) as Mexia’s interpretation was affirmed by numerous California and/or Federal Courts (See, e.g., Daniel v. Ford Motor Co. 806 F.3d 1217; Tanner v. Ford Motor Co. 424 F. Supp 3d 666 (N.D. Cal. 2019))

"In analyzing statutory language, [the court] seek[s] to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation" (Harris v. Capital Growth Investors (1991) 52 Cal. 3d 1142, 1159, 278 Cal. Rptr. 614, 805 P.2d 873)

“Ford training and policy materials to provide that an occasion on which the customer brought the vehicle in with a complaint, but the service staff was unable to find or confirm the problem, was not counted as a repair attempt [] [b]y th[is] narrow construction[], Ford allowed itself [to] avoid[] the title branding and additional notice requirements involved in reselling a lemon. (See § 1793.23, subd. (c).) (Johnson v. Ford Motor Co. (Nov. 25, 2003, F040188 & F040529) slip opn. at p. 13, 2003 WL 22794432.))

"Civil penalties "under section 1794(c), like other civil penalties, is imposed as punishment or deterrence of the defendant, rather than to compensate the plaintiff. In this, it is akin to punitive damages.” (Kwan v. Mercedes Benz of N. Am. (1994) 23 Cal.App.4th 174, 184 [28 Cal.Rptr.2d 371].)

"[n]o one can take advantage of his own wrong." (§ 3517.) Nor can principles of equity be used to avoid a statutory mandate. ((1989) 209 Cal.App.3d 1487, 1492 [ 257 Cal.Rptr. 924].” Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235 [ 13 Cal.Rptr.3d 679]

1
  • Seems like I’m on no man’s lands with this one. Any thoughts or questions how that could improve the question?
    – kisspuska
    May 29 at 16:47
1

The only analogy that I could draw and is less remote than punitive damages is civil penalties under FEHA claims; however, there, the Legislature explicitly stated that each violation will impose a certain civil penalty while at the same time it does not render the decision in the sole and exclusive discretion of the jury.

Everything else beyond that point is probably mere speculation until a case is brought before a court.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.