Metropolitan News-Enterprise


Wednesday, June 18, 2003


Page 1


Court of Appeal Rules:

‘Lemon Law’ Plaintiff Must Allow at Least Two Attempts at Repair


By KENNETH OFGANG, Staff Writer/Appellate Courts


A motor vehicle manufacturer must be given at least two opportunities to repair a malfunctioning vehicle, the Court of Appeal for this district ruled yesterday.

Div. Five affirmed a judgment in favor of Ford Motor Company and its Whittier-based dealership, Board Ford. Los Angeles Superior Court Judge Robert J. Higa granted the defendants’ motion for nonsuit based solely on the undisputed fact that plaintiffs Frank and Charlotte Silvio gave the defendants only one chance to fix their defective Ford Explorer before filing suit.

Justice Orville Armstrong, writing for Div. Five, cited the motor vehicle provisions of the Song-Beverly Consumer Warranty Act, commonly referred to as the “Lemon Law.” Those provisions require that the manufacturer and seller of a new car be allowed “a reasonable number of attempts” to fix it, and Armstrong reasoned that the use of the plural means a minimum of two.

Sudden Acceleration

The Silvios’ attorney, Lawrence J. Hutchens of Bellflower, presented evidence that the plaintiffs bought the Explorer in November 1998; that within two weeks of purchase the vehicle accelerated suddenly, rapidly, and without apparent cause; that Board Ford, after running tests, said there was nothing wrong with the vehicle and that the problem was caused by thick floor mats Frank Silvio had placed in the vehicle; and that another episode of sudden acceleration had occurred more than a year later, leading the Silvios to demand, unsuccessfully, that Board Ford buy back the vehicle.

At trial, the defendants denied that the vehicle was defective, but argued successfully that even if it was, they were entitled to at least one more chance to repair it.

On appeal, Hutchens argued that it was the intent of the Legislature to allow a consumer to sue after a single failed attempt if the defect is sufficiently serious, but Armstrong said the language of the statute was clear.

“We see no ambiguity or uncertainty here and thus do not consider any argument regarding intent,” the jurist wrote. “The statute requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle ‘after a reasonable number of attempts.’ ‘Attempts’ is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.”

Hutchens said he would take the issue to the state Supreme Court.

“My rudimentary understanding of English is that a reasonable number of attempts can be one,” he said “I have no idea what the Court of Appeal is thinking.”

Hutchens, who claims to have tried more “Lemon Law” cases than any other California lawyer, said he has won a number of cases in which cars were consumed by fire, and the manufacturers held liable.

Position Explained

In such a case, Hutchens explained, “zero would be a reasonable number of attempts.” He also noted that under the law, if the defect threatens life or serious bodily injury and the problem is repeated in the first 18 months or 18,000 miles of operation, there is a presumption that two is a reasonable number of attempts at repair.

“If two is presumed reasonable, why can’t one be reasonable?” under a particular set of circumstances, he asked rhetorically.

Ford’s attorney, Kenneth M. Jones of the Mid-Wilshire firm of Atkins & Evans, said he was “fairly confident” the high court would allow the ruling to stand. Given that the legislative history “was rather silent” on the point, Jones commented, the trial court and Court of Appeal were correct in applying “plain English.”

The case is Silvio v. Ford Motor Company, B157741.


Copyright 2003, Metropolitan News Company