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The Lemon Law and Presumption

  Norman Taylor & Associates
  November 29, 2008

You’ve heard the old adage, “If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck.” We would say, you might presume it’s a duck. Sure, there’s an outside chance it’s an albino spoonbill chicken disguised as a duck, but don’t bet your next paycheck on it.

To support the presumption, you get a nice textbook on birds (the law on birds), or better yet, ducks. That’s where we find the law about ducks.

If you want to know if your defective vehicle meets the presumption that it is indeed a lemon, in California, you read the appropriate sections of the Song-Beverly Act. This is where you can find the definition of the lemon law. As laws go, it is quite specific.

Here are the essentials of what the Song-Beverly Act says about what makes a car legally a lemon. The presumption (that the vehicle is a lemon) is established if any of the following occurs within the first 18 months or 18,000 miles:

* The same defect is subject to repair four or more times; or

* The same defect is subject to repair two or more times, and is a serious safety defect that is likely to cause death or bodily injury; or

* The vehicle is out of service for repairs for a cumulative total of more than 30 days, for any combination of defects. Thus, if a California consumer proves that a vehicle has been subject to repair four times for the same problem within 18 months or 18,000 miles, then the judge will tell the jury that the consumer has met his burden of proving that the manufacturer had a reasonable number of repair attempts.

The presumption helps consumers meet their burden of proof if they have to go to trial.

Does your vehicle have to meet the test of presumption to be considered a lemon? No, it doesn’t. But there are advantages to the consumer if it does. In lawsuits there is something called, the burden of proof. If the consumer’s lemon vehicle doesn’t meet the presumption that it is a lemon, the consumer has the burden of proving that the vehicle is a lemon when contending with the manufacturer. Obviously it is a lot more difficult financially for a consumer to prove that the vehicle is a lemon than it is for the manufacturer to dispute the claim.

An example of a car that does not meet the presumption, but may well legally be a lemon follows: The same defect is subject to repair four or more times over a period of two and a half years; or
* The vehicle is out of service for repairs for a cumulative total of more than 30 days, for any combination of defects.

* The vehicle currently has 38,000 miles on the odometer (remember, it had to be 18 months or 18,000 miles).

If, however, the consumer’s vehicle meets the presumption, the burden of proof shifts to the manufacturer. It is much harder for the manufacturer to dispute the consumer’s basic facts that the car meets the essential requirements of what is a lemon, when the vehicle meets the presumption.

With the burden of proof on the manufacturer, they must prove the consumer’s car is not a lemon. They may have to bring in experts, go through a lot of legal activities, and try to prove to a jury that the lemon law doesn’t say what it says. They must do this in the face of your facts, which are legally in your favor. This is good for the consumer.

Instead of being the short kid with glasses, constantly getting stuffed in lockers and trashcans, you are now the buff athlete who takes no crap from anyone. When our modern lemon laws were created, the very obvious imbalance between the consumer and his or her resources vs. manufacturer and their resources was taken into consideration. “The law”, as some wit said, “is a fool.” This is not always true. Sometimes the people who make the laws do the right thing. Sometimes even governments do the right thing. Here in America it happens more than anywhere else in the world.

[*] This information about Presumption applies to California. It varies from state to state. Contact our firm for the legal guidance you need!

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