Quite some time ago, manufacturers discovered that they can derail lemon law cases by slight twists of language on the repair orders. It works like this: vehicle owner is having transmission problems, and brings it in first time for “hard shifting”, which is what the dealer’s service writer writes down on the repair order. Then, two months later, owner brings car back in again for “hard shifting”. The manufacturers now have a “flag system,” wherein any customer who brings a vehicle in for warranty service for the same problem a second time has their vehicle “flagged” on the computer screen. The purpose of this system is to alert the dealer technicians and service writers that there is the potential of a lemon law claim with this vehicle.

So, the service writer hears “hard shifting” as a complaint; perhaps he writes it down on the repair order because the vehicle has not yet been “flagged”; perhaps the vehicle is already flagged, or gets flagged as he’s entering data into the manufacturer’s online warranty repair system. Either way, the service writer knows, or learns, that this vehicle is a potential lemon law claim. On this visit, or on the next one, he no longer writes down the customer’s complaint as “hard shifting”; instead, he thinks of another way to express it which diverts attention away from the transmission, such as “gas pedal sticking,” or “engine over-rev”, whatever alternative words that the dealer’s service writer chooses instead of “hard shifting”.

The purpose? When the customer goes to file his or her “lemon law” claim after five or six repair attempts for “hard shifting”, he is surprised to discover that he has only two repair orders which mention “hard shifting,” whereas he has five other repair orders that talk about different problems. The manufacturer can then argue that they did not have enough repair attempts for the “hard shifting,” and so can give themselves an unfair advantage in the lemon law claim.

How to you protect against this? You write out your complaints before you go to the dealership (or type them out on a computer), copy them and present your own written description of the problems to the service writer. Insist that they attach your written sheet to the repair order. That way, you ensure that YOUR description of the problem is what appears on the repair order. This leaves no room for the service writer to play any games. Obviously keep copies of everything in its own file, so you have a clear record of what you have handed to the service writer.

I hope this short blog entry is of use to you.

Bob Brennan

UNDER CALIFORNIA’S LEMON LAW:

“FOOLS DON’T RUSH IN”.

Robert F. Brennan, Esq.

BRENNAN, WIENER & ASSOC.

La Crescenta, Ca. 91214

Copyright © 2010 by Robert F. Brennan

All Rights Reserved

Hollywood produced a movie a few years ago, “Fools Don’t Rush In,” in which a guy fell in love with Selma Hayek but played it cool and coy, and ultimately won her heart.

The movie’s title is my theme for advising people about their rights under California’s lemon law with respect to the many Toyota vehicles that have been recalled. Those of you who have been following have, as of today’s date (March of 2010) observed that Toyota has decided to fight these cases. The most dramatic recent case involves the driver in San Diego who accelerated to pass another car and his Prius thereafter speeded up to 94 mph and would not slow down. One would imagine that Toyota would “roll over” and settle the case quickly, but instead it sent its engineers to a local dealership and tried to replicate the defect. The engineers could not reproduce the defect, whereupon Toyota kicked its public relations machine into high gear to flood the internet with stories challenging the driver’s credibility and competence as a driver.

Simultaneously, a YouTube video has gone viral, showing a guy wearing a balaklava (full-face ski mask) with sunglasses, using excessive profanity and describing how to turn off a runaway Prius, should it happen to you. Do ya really think Toyota didn’t have something to do with that? If so, I have some choice swampland in southern Mississippi which I’ll sell to you at a firesale price…

The PR and the marketing jousting aside, this short article gives you what you need to know about your rights under California’s lemon law as it bears upon the recalled Toyota vehicles.

1. A Recall Is Essentially Independent of a Lemon Law Claim: the two are essentially independent of each other. No recall—voluntary or involuntary—deprives you of your rights under California’s lemon law. If any dealership tries to get you to sign something waiving any of your rights under California’s lemon law, don’t sign it. You need not sign anything, and you need not give away any of your rights, to obtain recall service.
2. If You Have Not Had the Acceleration or Braking Problems, Get The Recall Work Done and Insist That It Be Done: I have studied the interview of the fellow in San Diego, who, allegedly, just barely escaped with his life when his Prius accelerated to 94 mph and would not slow down. With the assistance of the California Highway Patrol, he was eventually able to stop his vehicle and get out safely. When the press interviewed him, they asked if he’d had the recall work done and he responded that he took it to a Toyota dealership last month but was told his vehicle was not covered by the recall. So, he did not have any of the recall work done. If you own a Prius or one of the other affected vehicles, take it to a dealership and insist that the recall work be done!
3. You Do Not Have a California Lemon Law Case Simply Because You Are Afraid to Continue Driving Your Car: California’s lemon law, like most lemon laws, is triggered by repair attempts. It is not triggered by widespread media coverage of a recall or of problems with the vehicles. You need to have repair attempts before you invoke the California lemon law. In general, the legal standard is that you have given Toyota a reasonable opportunity to fix the defects, and the defects have persisted or have manifested so often that you “have reached the end of your rope”. If you have repair attempts for any of the problems covered by the recalls, particularly if you have repair attempts for these problems after you have had the recall work done, then you most probably have a lemon law claim and we would gladly review your case free of charge and advise you whether you have a lemon law claim.
4. If You Have One of the Vehicles that Has Exhibited the Defect Dramatically, Toyota Will Likely Repurchase The Car Without a Lemon Law Claim: if you have one of the cars that has accelerated dangerously on the highway and/or has had a dangerous brake failure, and it is documented (i.e. there is a recorded call with 9-1-1 or with the California Highway Patrol), my sense is that Toyota will likely buy the car back, quietly, as a goodwill/public relations gesture, and may even offer you some additional money, if you contact them directly. You can contact Toyota through your dealer or at the address given in your warranty booklet. If your Toyota has manifested the defect or defects and Toyota refuses to deal with you in good faith, contact our law firm for a free case review at: info@brennanlaw.com or at (818) 249-5291.
5. If You Have Suffered Injury or Death Because of Toyota’s Defects, You Need to Contact an Attorney: Be advised: if you or family members have suffered injuries or death because of the defects, then you need to go through an attorney to handle the situation. A serious injury or death claim is not a lemon law claim and needs special attention and evaluation by attorneys and by mechanical experts. If you were to try to contact Toyota directly, Toyota would likely not give you what your case is worth and will have you sign a release foreclosing any future claims. If you have any questions in this regard, contact our law firm at info@brennanlaw.com or at (818) 249-5291.
6. If You Are Contacted by a Class Action Firm, I Would Advise Against Joining the Class if Your Vehicle Has Manifested the Defects: in general, class members get a lot less in class actions than consumers who pursue their claims on an individual basis. If you join a class, remember that you will likely be limited to what the attorneys negotiate for the entire class, even if your case is stronger than that of other class members. For instance, let’s say your car has manifested the defect even after you had the recall work done. You would likely have a very strong lemon law claim wherein you could obtain your full purchase price, any additional money you put into the case and have your attorney’s fees paid by Toyota. However, as a class member, you would likely get a small monetary award or a coupon of some sort towards an oil change or your purchase of your next Toyota vehicle.
7. Short Recap of What You Need to Do: My advice to the many Toyota owners who have contacted us is, first, to have the recall work done. Obviously document every non-optimum thing your car does, particularly with regard to the acceleration or braking systems. If your car does not manifest any of the problems, I would not necessarily worry about the car but I would learn what there is to be learned about shutting your car off in the event of a sudden acceleration or a braking failure. If you are contacted about a class action lawsuit and you have not experienced any problems with your car, I see no reason not to participate with the class and I would “opt in” to the class. If your car has experienced any of the defects which are the subjects of the recalls, I would not participate in any class action and instead would consult an attorney concerning a potential lemon law claim. If you or your family members have suffered injuries or death as a result of the defects, I would consult with a products liability attorney.

I hope this short article is of use to you. Thanks for reading.

Robert F. Brennan