picture of a ford SUV

What Silvio Does and Does Not Say

By Michael H. Rosenstein, Esq.

The court’s seemingly straightforward holding in Silvio v. Ford Motor Co., 109 Cal. App. 4th 1205, 1207 (2003) (“Silvio”) is regularly misconstrued, misquoted, and misinterpreted to stand for things that it simply does not say.  Automakers like to stretch, squeeze, and shoehorn Silvio into an interpretation that serves their defense of a Song-Beverly Act claim.  However, Silvio itself simply does not say what the automakers oftentimes claim that it does.  What is more, when read in light of other key lemon law precedents, it is very clear that Silvio does not support the automakers’ erroneous interpretation.  

The facts of Silvio begin with Frank and Charlotte Silvio purchase of a Ford Explorer from Board Ford on November 17, 1998. (Silvio  at 1207). On November 29, 1998, as Frank Silvio drove into his garage, the Explorer suddenly and rapidly accelerated, although Silvio did nothing to cause the acceleration. (Id.) On December 28, after picking the Explorer up from the body shop, Frank Silvio drove the Explorer to Board Ford. (Id.) Board Ford representatives drove the Explorer and conducted tests, and told Silvio that they could not find anything wrong with the vehicle, but that the problem was caused by thick after-market floor mats he had put in the Explorer. (Id.)  There was another episode of sudden acceleration on July 24, 2000. (Id.) The Silvios’ son contacted Board Ford, told them about the incident, and said that appellants wanted Ford to buy back the Explorer and did not want it fixed. (Id.) Ford refused to buy the Explorer from the Silvios. The evidence was thus that Ford Motor Company was given only one opportunity to repair the Explorer.  

The holding in Silvio is very straightforward: the court of appeal found that that the Silvios could not exercise their rights under the Song-Beverly Act because Ford had been given only one opportunity to fix the vehicle.  As the court explained, “[t]he 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.” (Silvio at 1208, emphasis added).  Thus, Silvio’s holding is clear: manufacturers must be allowed at least two or more attempts to conform a vehicle to warranty.  

Automakers oftentimes attempt to bend Silvio to argue that they should be allowed more than one attempt to fix each defect in a vehicle, more than one attempt for each part that breaks in a vehicle, or that defects which are fixed on the first attempt do not even count towards a Song-Beverly Claim.  All three of these arguments are bogus and stem from a misreading of Silvio.  

The unique facts of Silvio apply to the rare case where a consumer’s vehicle, like the Silvios’ vehicle, is presented only one time for repair.  The language of the statute, Civil Code 1793.2(d)(2) is clear: “If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle… to conform to the applicable express warranties after a reasonable number of attempts…” the manufacturer must replace/repurchase the vehicle. It must be noted that, in the statute, the language “after a reasonable number of repair attempts” applies to the “vehicle” as a whole – not to each defect in the vehicle.  No California case has ever held otherwise.  In fact, each occasion that an opportunity for repairs is provided counts as an attempt, even if no repairs are actually undertaken. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103-1104.)

FCA (manufacturer of Fiat, Chrysler, Dodge, Ram, Jeep, Maserati, and other vehicles) recently attempted to misinterpret Silvio in the matter Atienza v. FCA US LLC, No. 3:17-CV-00977-WHO, 2018 WL 6460431, at *3 (N.D. Cal. Dec. 10, 2018).  FCA argued that the plaintiff’s case should be thrown out because he, “never presented the same defect to an authorized repair facility more than once as required under the ‘attempts’ language of the statute, and all issues that he did present were resolved.”  The United States District Court, Northern District of California, however, correctly read Silvio and shot FCA’s arguments down, stating: “Silvio is not instructive for two reasons. First, I cannot agree with the court’s statutory interpretation analysis. Given the structure of the phrase ‘a reasonable number of X,’ the object of the preposition ‘of’ must necessarily be plural. One person might think one is a reasonable number of children, while another might find five a reasonable number. Children may be plural, but one is not. Second, as [plaintiff] points out, the plaintiffs in Silvio brought in the entire vehicle for repair only once. See Oppo. 8. Accordingly, the court did not hold that a plaintiff must present the same defect more than once.  FCA has produced evidence that could lead a jury to conclude that it did not have a reasonable number of opportunities to cure the defects or that it successfully repaired all defects.”  (Id.).  

In 1964, the band The Animals famously sang, “Please Don’t Let Me Be Misunderstood!”  55-years later, Silvio should not be misunderstood either.  Silvio does not say that manufacturers get two chances to fix each defect or each part on a car.  Allowing such leeway would be ridiculous because modern cars have some 30,000 parts. Silvio also doesn’t say that defects, which are fixed on the first try, do not count towards a Song-Beverly claim.  What Silvio does hold is that vehicle manufacturers are allowed more than one attempt to fix the vehicle as a whole.  Nothing more.  

Our State’s lemon laws are nuanced and manufacturers go out of their way to bend them in their favor.  If you need help with a tricky lemon law claim, call the experts at CCA: (833) LEMON-FIRM.