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Bob buys a car that meets the "lemon-law" presumption of California's lemon laws; to collect civil penalties for non-willful violations, he needs to serve a notice on the manufacturer. But the manufacturer is already represented by an attorney who demanded Bob not to contact the would-be-defendant manufacturer. What is the correct course of action for Bob?

According to Civ. Code § 1794(e)(3):

"After the [vehicle met "lemon law"], the buyer may serve upon the manufacturer a written notice requesting that the manufacturer comply with [its replace-or-refund duties]. If the buyer fails to serve the notice, the manufacturer shall not be liable for a civil penalty pursuant to this subdivision." (boldface added)

Does that "may" mean such permission that can overcome the prohibition that Bob directly contacts manufacturer if their attorney (1) asserts they will represent manufacturer going forward, (2) that all communications be directed to the attorney, and (3) expressly commands to cease any communications with manufacturer?

Does it mean that such service of process duty shall be complied with through the attorney or it means that, for compliance with the subparagraph of the paragraph of this subdivision, Bob may still -- and to assert the rights conferred therein, in fact, must -- make contact directly with the manufacturer?

This could go both ways, and no direct authority helps.

Any analogous situation?

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3 Answers 3

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Bob personally has no duty to honor Attorney's demands of non-contact. Bob is permitted to serve Manufacturer directly, or he may request that Attorney waive service on Manufacturer's behalf.

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Not only can it, it must be

The statute is very clear that if it is not served on the manufacturer, the manufacturer has no liability.

The “may” in the clause gives discretion to the consumer on if they want to serve the manufacturer, not on how.

You have no contract or other relationship with the manufacturer’s lawyer that requires you to follow their instructions, so don’t.

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An attorney for someone may insist that attorneys for other people not contact his client, as a matter of attorney ethics. The attorney does not have a right to insist that the clients themselves (if they are not merely acting as conduits for their own attorneys) do so, or to prohibit someone from serving process or a notice on another person.

Process to commence a lawsuit may not be served by someone who is a party to the lawsuit, by their lawyer(s), or by someone under the age of eighteen. So, even if Bob could give legal pre-litigation notice to a manufacturer he proposes to sue, he could not serve the summons and complaint in that lawsuit upon the manufacturer. This is something that would have to be done by a third-party such as a deputy sheriff or a process server or a paralegal in the office of Bob's lawyer.

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    How widespread is the rule that a party may not serve papers personally? I know in some cases in some jurisdictions service may be made bi certified or registered mail. Could such mail be sent directly by a party?
    – David Siegel
    Commented Oct 25, 2021 at 23:59
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    @DavidSiegel It is widespread with respect to personal service. With respect to service by mail the conceptual issue is whether service was accomplished by the mail delivery person or by the person who sent the mail. This is particularly true in the case of registered or certified mail in which case the proof of service is by a third-party. Of course, fine details of procedure at this level vary.
    – ohwilleke
    Commented Oct 26, 2021 at 20:24

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