§ 871.24.Notice and Conditions For Seeking Civil Penalties

This section is the gatekeeper for civil penalties in a Chapter 12 case. At least 30 days before filing an action seeking civil penalties under Civil Code section 1794(c), the consumer has to notify the manufacturer of the consumer's name, the vehicle's VIN, and a brief summary of the repair history and problems, and demand that the manufacturer repurchase or replace the vehicle. Minor deviations from these requirements don't disqualify the consumer, but the consumer has to possess the vehicle when sending the notice, and the notice has to go out in writing -- by email to the address the manufacturer prominently posts for this purpose, or by certified or registered mail to the address in the owner's manual or warranty booklet -- and manufacturers have to post and print that contact information in both English and Spanish.

Subdivision (e) builds in a safe harbor for manufacturers who respond quickly and in good faith. If, within 30 days of the notice, the manufacturer offers restitution or replacement for the amount § 1793.2(d) and § 871.27 set, plus reasonable attorney's fees and costs where the consumer has counsel, and completes that restitution or replacement within 60 days of the original notice, civil penalties aren't available at all -- so long as the consumer also cooperated in good faith with reasonable documentation requests. A prelitigation dispute over just the amount of fees and costs goes to neutral, binding arbitration, and a fee dispute alone doesn't show the manufacturer's offer fell short.

The consumer has to hold onto the vehicle for at least 30 days after sending notice; if the manufacturer doesn't offer anything within that window, the consumer can sell the vehicle while still pursuing remedies, including civil penalties, but if the manufacturer does offer restitution or replacement, the consumer has to keep the vehicle the full 60 days. None of this blocks a consumer from suing for restitution or replacement without ever sending this notice -- the consumer just has to have possession of the vehicle when filing and can't add civil penalties later. But if the consumer does send notice and the manufacturer fails to meet its obligations under subdivision (e), the door to civil penalties reopens. And a consumer who sells the vehicle under the 30-day option preserves the right to civil penalties only by telling the buyer, in writing before the sale, about the pending claim and any action already filed.