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1.2.6 The California Song-Beverly Consumer Warranty Act

California’s Song-Beverly Consumer Warranty Act30 includes a variety of requirements for consumer warranties on new goods that are sold at retail in California.31 The Act thus applies to sales of new vehicles, manufactured homes, and a broad range of other consumer products, and is not limited to just one product as are the statutes discussed in § 1.2.5, supra.

Like the typical new car lemon law, the Act requires the manufacturer to replace a product if it cannot be repaired within a reasonable number of attempts.32 The consumer must deliver the product to an in-state repair facility within the express warranty period unless the product’s size, weight, or similar factors make delivery unreasonable.33

A significant advantage of the Act is that it does not require the consumer to give notice to the warrantor prior to bringing suit.34 Another major advantage is that it makes the manufacturer of new consumer goods responsible for the implied warranty of merchantability regardless of privity.35 Most of the Act provides a private cause of action, including civil penalties and attorney fees, for failure to comply.36 The Act also includes a number of restrictions on disclaimers and other means of avoiding warranties, including a provision, similar to that found in the Magnuson-Moss Warranty Act,37 prohibiting the disclaimer of implied warranties when the seller provides an express warranty as defined by the statute.38 It is especially useful in motor home cases because it covers the living quarters of motor homes, which are excluded from the lemon law.39

The Song-Beverly Warranty Act applies only to “consumer goods,” defined as new products that are acquired primarily for personal, family, or household purposes.40 The definition excludes consumables,41 but another provision of the Act places a duty upon retailers to provide a replacement or refund, at the retailer’s choice, if, within thirty days of purchase, a buyer returns a consumable that was accompanied by an express warranty.42

Despite the general definition of “consumer goods” as new goods, one section of the Act explicitly applies to used goods.43 It provides that the obligation of a seller of used goods in a sale in which an express warranty is given is the same as that imposed on manufacturers, with some exceptions. As the Act prohibits manufacturers that provide express warranties from disclaiming implied warranties for new goods,44 it appears that this duty therefore applies to sellers of used goods as well.45

The Song-Beverly Warranty Act also provides that, when used goods are sold with an express warranty, implied warranties must last at least as long as the express warranty, but in no event less than thirty days or more than three months.46 In addition, most of the lemon law provisions of California’s statute apply to a “new motor vehicle,” defined to include one that is still under the manufacturer’s new car warranty when sold.47 Therefore the Act’s new car provisions should apply to the sale of a used car, when that car is still under the manufacturer’s warranty. The Act also includes its own definition of “express warranty,”48 which is somewhat narrower than the UCC definition, and in some ways similar to the Magnuson-Moss Warranty Act’s definition.

An intermediate appellate court decision holds that roofing shingles do not meet the definition of consumer goods because they do not fit into the statutory scheme, which gives the manufacturer three options: repairing the goods on-site, picking them up for repair, or arranging for them to be transported to a repair facility.49 The court noted that shingles could not be removed from the home and taken to a repair facility without damaging the home, but could only be repaired on-site, so the manufacturer would only have the option of on-site repair. From this fact the court concluded that the legislature could not have intended shingles to fall within the definition of consumer goods.

The decision ignores the fact that another part of the statute specifically refers to goods that cannot be returned to the manufacturer because of “size and weight, or method of attachment, or method of installation,” clearly contemplating that such goods are covered.50 A separate chapter of California’s warranty law requires a written contract when roofing materials are sold with a warranty, and requires certain disclosures.51

Footnotes

  • 30 {30} Cal. Civ. Code §§ 1790 to 1795.8 (West).

  • 31 {31} See Kowalsky v. Hewlett-Packard Co., 771 F. Supp. 2d 1138 (N.D. Cal. 2010), vacated in part on other grounds, 771 F. Supp. 2d 1156 (N.D. Cal. 2011); In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077 (S.D. Cal. 2010) (inapplicable when no named plaintiff pleaded that purchase was made in California).

  • 32 {32} Cal. Civ. Code § 1793.2 (West).

  • 33 {33} Cal. Civ. Code § 1793.2 (West). See Horvath v. LG Electronics Mobilecomm U.S.A., Inc., 2012 WL 2861160, at *8 (S.D. Cal. Feb. 13, 2012) (manufacturer’s failure to maintain repair facilities or independent service providers within state is violation).

  • 34 {34} Beck-Ellman v. Kaz USA, Inc., 283 F.R.D. 558, 569 (S.D. Cal. 2012). See also Terrill v. Electrolux Home Products, Inc., 753 F. Supp. 2d 1272 (S.D. Ga. 2010) (Song-Beverly Act does not require consumer to give notice to manufacturer within reasonable time); Mexia v. Rinker Boat Co., 95 Cal. Rptr. 3d 285, 293 (Cal. Ct. App. 2009) (Act does not require that notice be given within a reasonable time). But see Kearney v. Hyundai Motor Co., 2010 WL 9093204, at *6 (C.D. Cal. June 4, 2010) (conflating U.C.C. and Song-Beverly notice requirements).

  • 35 {35} See § 6.2.4.2.3, infra.

  • 36 {36} Cal. Civ. Code § 1794 (West).

  • 37 {37} See § 2.3.2, infra.

  • 38 {38} Cal. Civ. Code § 1793 (West). See § 5.4.1, infra.

  • 39 {39} See §§ 14.2.3.2.1, 14.2.3.2.2, infra.

  • 40 {40} Cal. Civ. Code § 1791(a) (West). See Parker v. Alexander Marine Co., 2015 WL 12712083 (C.D. Cal. May 26, 2015) (custom-built yacht is “consumer good”).

  • 41 {41} Cal. Civ. Code § 1791(a) (West). See Bruton v. Gerber Products Co., 961 F. Supp. 2d 1062 (N.D. Cal. 2013) (Act excludes consumables and therefore does not apply to food labeling); Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889 (N.D. Cal. 2012).

  • 42 {42} Cal. Civ. Code § 1793.35 (West).

  • 43 {43} Cal. Civ. Code § 1795.5 (West).

  • 44 {44} Cal. Civ. Code § 1793 (West).

  • 45 {45} Cf. In re MyFord Touch Consumer Litig., 291 F. Supp. 3d 936 (N.D. Cal. 2018) (interpreting this provision to make seller or distributer liable, not manufacturer). But cf. Leber v. DKD of Davis, Inc., 187 Cal. Rptr. 3d 731 (Cal. Ct. App. 2015) (fact that used car came with manufacturer’s warranty does not prevent dealer from disclaiming its warranties).

  • 46 {46} Cal. Civ. Code § 1795.5(c) (West).

  • 47 {47} Cal. Civ. Code § 1793.22(e) (West). See Victorino v. FCA USA L.L.C., 2018 WL 2455432, at *17–18 (S.D. Cal. June 1, 2018). See generally § 14.2.3.3, infra.

  • 48 {48} Cal. Civ. Code § 1791.2 (West). See, e.g., Maxwell v. Unilever U.S., Inc., 2013 WL 1435232 (N.D. Cal. Apr. 9, 2013) (product description is not a Song-Beverly Act warranty); Jones v. ConAgra Foods, Inc., 912 F. Supp. 2d 889 (N.D. Cal. 2012) (food label does not meet Song-Beverly Act definition of express warranty); Mega RV Corp. v. HWH Corp., 170 Cal. Rptr. 3d 861, 872 (Cal. Ct. App. 2014) (Song-Beverly Act applies to express warranty provided by component supplier).

  • 49 {49} Atkinson v. Elk Corp., 135 Cal. Rptr. 2d 433 (Cal. Ct. App. 2003).

  • 50 {50} Cal. Civ. Code § 1793.2(c) (West).

  • 51 {51} Cal. Civ. Code §§ 1797.90 to 1797.96 (West).