No. 13-16476 - U.S. Chamber Litigation Center. 13-16476 . I. N . T. HE. ... (granting request to...

No. 13-16476 IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARGIE DANIEL; MARY HAUSER; DONNA GLASS; ANDREA DUARTE, individually and on behalf of a class of

similarly situated individuals, Plaintiffs—Appellants,

v.

FORD MOTOR COMPANY, a Delaware corporation, Defendant—Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIAM B. SHUBB, DISTRICT JUDGE • CASE NO. 11-02890 WBS EFB

MOTION FOR JUDICIAL NOTICE; DECLARATION OF JAN S. RAYMOND

HORVITZ & LEVY LLP JEREMY B. ROSEN

PEDER K. BATALDEN JOHN A. TAYLOR, JR.

15760 VENTURA BOULEVARD, 18TH FLOOR ENCINO, CALIFORNIA 91436-3000

(818) 995-0800

U.S. CHAMBER LITIGATION CENTER, INC.

KATE COMERFORD TODD WARREN POSTMAN 1615 H STREET, NW

WASHINGTON, D.C. 20062 (202) 463-5337

ATTORNEYS FOR AMICUS CURIAE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA

Case: 13-16476, 12/23/2015, ID: 9804395, DktEntry: 41-2, of 27

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................... ii

MEMORANDUM OF POINTS AND AUTHORITIES ............................. 1

JUDICIAL NOTICE SHOULD BE TAKEN OF LEGISLATIVE HISTORY MATERIALS THAT ARE RELEVANT TO THE STATUTORY INTERPRETATION ISSUES PRESENTED IN THIS CASE. ........................................................................................................ 1

CONCLUSION .......................................................................................... 6


ii

TABLE OF AUTHORITIES Page(s)

Cases

Am. Fin. Servs. Ass’n v. City of Oakland, 34 Cal. 4th 1239 (2005) ......................................................................... 3

Ass’n des Eleveurs de Canards et d’Oies du Que. v. Harris, 729 F.3d 937 (9th Cir. 2013) ................................................................. 1

Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005) ............................................................... 1

Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008) ............................................................... 2

Church of Scientology of Cal. v. U.S. Dep’t of Justice, 612 F.2d 417 (9th Cir. 1979) ................................................................. 5

Commodore Home Sys., Inc. v. Superior Court, 32 Cal. 3d 211 (1982) ............................................................................ 3

County of San Bernardino v. City of San Bernardino, 15 Cal. 4th 909 (1997) ........................................................................... 3

Cunningham v. Litton Indus., 413 F.2d 887 (9th Cir. 1969) ................................................................. 2

Drouet v. Superior Court, 31 Cal. 4th 583 (2003) ........................................................................... 4

Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) ............................................................................... 4

Gavaldon v. DaimlerChrysler Corp., 32 Cal. 4th 1246 (2004) ......................................................................... 3

Kalvinskas v. Cal. Inst. of Tech., 96 F.3d 1305 (9th Cir. 1996) ................................................................. 4


iii

Kern v. County of Imperial, 226 Cal. App. 3d 391 (1990) .................................................................. 3

Lantzy v. Centex Homes, 31 Cal. 4th 363 (2003) ........................................................................... 4

Martin v. Szeto, 32 Cal. 4th 445 (2004) ........................................................................... 4

N. Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) ............................................................................... 4

Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007) ................................................................. 2

Rhodes v. Sutter Health, 949 F. Supp. 2d 997 (E.D. Cal. 2013) ................................................... 1

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951) ............................................................................... 4

Winfrey v. McDaniel, 487 F. App’x 331 (9th Cir. 2012) ........................................................... 2

Zephyr v. Saxon Mortg. Servs., Inc., 873 F. Supp. 2d 1223 (E.D. Cal. 2012) ................................................. 1

Statutes

California Civil Code § 1790-1795.8 ........................................................................................ 2 § 1791.1 ................................................................................................. 2 § 1791.1(c) ............................................................................................. 5

California Health & Safety Code § 25982 ................................................. 1

California Penal Code § 148.6 ................................................................................................... 1 § 632 ...................................................................................................... 1


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Rules

Federal Rule of Evidence Rule 201 ............................................................................................ 1, 6 Rule 201(c)(2) ........................................................................................ 1 Rule 201(d) ............................................................................................ 1

Miscellaneous

California Senate Bill 742, Chapter 1523, Statutes of 1971 .................... 2


1

MEMORANDUM OF POINTS AND AUTHORITIES

JUDICIAL NOTICE SHOULD BE TAKEN OF LEGISLATIVE HISTORY MATERIALS THAT ARE RELEVANT TO THE STATUTORY INTERPRETATION ISSUES PRESENTED IN THIS CASE.

A court “must take judicial notice if a party requests it and the court

is supplied with the necessary information” and “may take judicial notice

at any stage of the proceeding.” Fed. R. Evid. 201(c)(2) & (d). Under this

rule, circuit courts routinely take judicial notice of state legislative history

materials when relevant to the issues on appeal. See, e.g., Ass’n des

Eleveurs de Canards et d’Oies du Que. v. Harris, 729 F.3d 937, 945 n.2

(9th Cir. 2013) (taking judicial notice of legislative history of California

Health and Safety Code section 25982); Chaker v. Crogan, 428 F.3d 1215,

1223 n.8 (9th Cir. 2005) (granting request to take judicial notice of

legislative history of California Penal Code section 148.6); see also Rhodes

v. Sutter Health, 949 F. Supp. 2d 997, 1001 (E.D. Cal. 2013) (“Under Rule

201 of the Federal Rules of Evidence, the court may take judicial notice of

the legislative history of state statutes.”); Zephyr v. Saxon Mortg. Servs.,

Inc., 873 F. Supp. 2d 1223, 1226 (E.D. Cal. 2012) (taking judicial notice of

the legislative history of California Penal Code section 632).


2

In this case, amicus Chamber of Commerce of the United States of

America (“Chamber”) requests that the Court take judicial notice of the

three documents attached as exhibits to the Declaration of Jan S.

Raymond.1 As explained in Mr. Raymond’s declaration, these documents

were obtained by his company, Legislative History and Intent, and are

portions of the legislative history of Senate Bill 742, Chapter 1523,

Statutes of 1971, which added California Civil Code section 1791.1 to the

Song-Beverly Consumer Warranty Act, California Civil Code sections

1790-1795.8. (Raymond Decl. ¶¶ 1-2.) Mr. Raymond has over thirty years

of experience in legislative research and analysis of legislative intent. (Id.

¶ 1.) Unlike Congress, the California Legislature does not publish its

legislative history, so it is necessary for specialized researchers (like Mr.

Raymond here) to gather pertinent materials from various archives; such

1 This Court has previously granted judicial notice requests by amicus curiae. See, e.g., Winfrey v. McDaniel, 487 F. App’x 331, 332 n.3 (9th Cir. 2012) (“We grant amicus curiae’s request that we take judicial notice of court records in Polk [v. Sandoval, 503 F.3d 903 (9th Cir. 2007)] and Chambers [v. McDaniel, 549 F.3d 1191 (9th Cir. 2008)].”); Cunningham v. Litton Indus., 413 F.2d 887, 889 n.2 (9th Cir. 1969) (“[W]e take judicial notice of the Commission’s decision which is set out as an appendix to its amicus curiae brief.”)


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materials are typically presented to California’s appellate courts through

motions for judicial notice like this one.

California’s appellate courts regularly have taken judicial notice of

the types of legislative documents attached to Mr. Raymond’s declaration:

Exhibits A & B: Letter from Wallace O’Connell, Attorney,

Partridge, O’Connell & Partridge, to Sen. Alfred H. Song, Chairman, S.

Comm. on Judiciary (Apr. 14, 1971); letter from Richard Thomson, Admin.

Assistant to Sen. Alfred H. Song, to Wallace O’Connell, Attorney,

Partridge, O’Connell & Partridge (Apr. 16, 1971). See Gavaldon v.

DaimlerChrysler Corp., 32 Cal. 4th 1246, 1257-58 (2004) (relying on these

identical letters in interpreting Song-Beverly’s legislative intent); County

of San Bernardino v. City of San Bernardino, 15 Cal. 4th 909, 916-17, 926

(1997) (relying on proponent/opponent letter); Commodore Home Sys., Inc.

v. Superior Court, 32 Cal. 3d 211, 219 (1982) (relying on documents from

the bill sponsor’s file); Kern v. County of Imperial, 226 Cal. App. 3d 391,

401 (1990) (“The statements of the sponsor of legislation are entitled to be

considered in determining the import of the legislation.”).

Exhibit C: Letter from Sen. Alfred H. Song, Chairman, S. Comm. on

Judiciary, to Ronald Reagan, Governor of Cal. (Nov. 5, 1971). See Am. Fin.


4

Servs. Ass’n v. City of Oakland, 34 Cal. 4th 1239, 1263 (2005) (legislator

letter to governor); Martin v. Szeto, 32 Cal. 4th 445, 450-51 (2004) (letters

to governor from authoring legislator, proponents, and opponents); Drouet

v. Superior Court, 31 Cal. 4th 583, 598 n.4 (2003) (legislative author letter

to governor); Lantzy v. Centex Homes, 31 Cal. 4th 363, 377 (2003)

(legislative author letter to governor).

These cases demonstrate that the types of legislative documents of

which the Chamber seeks judicial notice are routinely consulted by

California’s appellate courts when considering the background and

purpose of specific bills and statutes. Federal courts may also consider

statements by the sponsors of legislation as an authoritative guide to

interpreting a statute. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512,

526-27 (1982) (“Senator Bayh’s remarks, as those of the sponsor of the

language ultimately enacted, are an authoritative guide to the statute’s

construction.”); Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548,

564 (1976) (“As a statement of one of the legislation’s sponsors, this

explanation deserves to be accorded substantial weight in interpreting the

statute.”); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384,

394-95 (1951) (“The fears and doubts of the opposition are no authoritative


5

guide to the construction of legislation. It is the sponsors that we look to

when the meaning of the statutory words is in doubt.”); Kalvinskas v. Cal.

Inst. of Tech., 96 F.3d 1305, 1309 (9th Cir. 1996) (relying on “relevant

statements by sponsors” of a bill); Church of Scientology of Cal. v. U.S.

Dep’t of Justice, 612 F.2d 417, 424 n.13 (9th Cir. 1979) (“Courts look to the

statements by the initiators or sponsors of proposed legislation when the

meaning of words used in a statute is in doubt.”)

In the present case, the cited legislative materials are relevant to

show the California Legislature’s intent with respect to whether it

intended the maximum one-year duration for limited warranties on new

goods in California Civil Code section 1791.1(c) to limit the time in which a

latent defect may surface and create liability for the warrantor. That issue

is discussed at pages 3-7 of the Chamber’s amicus curiae brief in support

of Ford Motor Company’s petition for rehearing. The Chamber’s amicus

brief is filed concurrently with this motion.


6

CONCLUSION

For the foregoing reasons, the Chamber respectfully requests that

this Court take judicial notice of Exhibits A through C to the Declaration

of Jan S. Raymond, pursuant to Federal Rule of Evidence 201.

December 23, 2015 HORVITZ & LEVY LLP JEREMY B. ROSEN PEDER K. BATALDEN JOHN A. TAYLOR, JR.

U.S. CHAMBER LITIGATION CENTER, INC. KATE COMERFORD TODD WARREN POSTMAN

By: s/John A. Taylor, Jr.

Attorneys for Amicus Curiae CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA


1

2 DECLARATION OF JAN S. RAYMOND I, Jan Raymond, declare: 3

1. I am an attorney licensed to practice by the California State Bar, State Bar number 4

5 88703, and admitted to practice in the United States Federal Court for the Eastern District of

6 California. My company, Legislative History and Intent, is in the business of researching the

7 history and intent of legislative and regulatory enactments and adoptions; I personally have over

8 30 years experience in research and analysis of legislative and regulatory intent. In

9 cooperation with persons working under my supervision, I undertook to research Chapter 1523

10 of the Statutes of 1971.

11 2. The documents listed and attached are true and correct copies of the substantive

12 documents collected from the California State Archives collection of legislative bill files relating

13 to Senate Bill 742, which was enacted as Chapter 1523 of the Statutes of 1971, and which

14 added California Civil Code Section 1791.1 to the Song-Beverly Consumer Warranty Act.

15 3. References to "bill file" as used in this declaration refer to files created by the

16 legislature in considering and enacting Chapter 1523 of the Statutes of 1971, Senate Bill 742.

17 Some documents copied from microfilm originals may be of poor quality; all copies included with

18 this report are the best available copies.

19 4. The following list identifies the documents that are attached as Exhibits to this

20 declaration:

21 Exhibit A: Letter to Senator Song, author of Senate Bill 742, from Attorney Wallace O'Connell, dated April 14,1971, from the bill file of Senator Song, six pages. 22

23 Exhibit B: Letter to Attorney Wallace O'Connell from Senator Song's Administrative Assistant, dated April 16, 1971, from the bill file of Senator Song, two pages.

Exhibit C: Letter to Governor Reagan from Senator Song, dated November 5, 1971, from the Chaptered bill file of former Governor Ronald Reagan, two pages.

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(888) 676-1947 Declaration of Jan Raymond For definitions of the legislative terms used in this declaration,

Explore our Free Library by navigating to the Research Policies section at www.legislativeintent.com

Page 1 of 2


1 I declare under penalty of perjury the foregoing is true and correct.

Executed at Sacramento, California, December 21, 2015. 2

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4 d-J 'U Jam Raymond 5

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(888) 676-1947 Declaration of Jan Raymond For definitions of the legislative terms used in this declaration,

Explore our Free Library by navigating to the Research Policies section at www. leg is lativeintent.com

Page 2 of 2


EXHIBIT A


Sw,.cc PARTRIDGE. OCONNELL PARTRIDGE.a c ATTORNCVS AT LAW

2400 SL U0N 000 US SRSS1

r. SAN FRANC5CQ CALWORNA 9404

R0RT C. NATZ

April 14, 1971

The Honorable Alfred H. SongCalifornia State SenateState CapitolSacramento, California 95814

Re: Amendments To Song-BeverlyConsumer Warranty ActReq. 6550

My dear Senator Song:

This office represents Northern CaliforniaMotor Car Dealers Association, Inc., a voluntary, nonprofit association of dealers in new motor vehicles.

Previous cortamications of the views of theAssociation with regard to the impact of the Song-Beverly consumer Warranty Act in the field of new andused motor vehicles have played some part in theformulation of the amendments which you have proposedto the kct, and the proposed amendment referenced asabove does obviate many points of conceri to the retailautomobile industry.

However, there ar two or three points towhich we would ask you to direct your attention:

Duration or Enforcement ofImplied Warranties

Proposed new Section 1791.1 (c) reads asfollows:

tm(c) The duration of the impliedwarranty of merchantability and wherepresent the implied warranty of fitness shall in no event be in excess ofone year following the sale of newconsumer goods to a retail buyer.

followsProposed new Section 1795.5 (c) reads as


he Honorable Alfred H. SongCalifornia State SenatePage 2April 14, 1971

(c) The duration of the impliewarranty of merchantability and wherepresent the implied warranty of fitnesswith respect to used consumer goods soldin this state, where the sale is ac—companied by an express warranty, shallin no event be in excess of three monthsfollowing the retail sale of such usedconsumer goods.

We consider it extremely desirable that therebe a limitation of time within which complaint withrespect to breaches of implied warranty may be assertedagainst a manufacturer or a seller. However, we feelthat the two foregoing amendments add a new dimensionto the law with regard to implied warranties. TIe Actadopts, substantially verbatim, most of the implijedwarranties recognized Ey Sections 2314 and 2315 of theCommercial Code of the State of California,

It is our understanding of the law with regardto implied warranties that these are applicable only tothe condition of the goods at the time of sale. werecognize that a latent defect may appear only at alater date, but it must tend to show that the defectivecondition existed at the time of sale, and, according toour understanding, the courts have never viewed impliedwarranties as representing continuing obligations offuture duration.

One of the implied warranties is “that thegoods are fit for the ordinary purposes for which suchgoods are used. If we apply the proposed amendmentsto this implied warranty, it would follow that, If,for reasons not traceable to the condition of the goodsat time of sale, the article became unfit for use,within a one—year period in the case of new godda, orwithin a three—month period in the case of used goodsthe warrantor could be held liable for this developingcondition.

We urge you, therefore, to consider revisingthe cited sections, so that they will not refer to the


. .

ri TTcnorable Alfred H. SaneCalifornia State SenatePage 3April 14, 1971

duration of the implied warranty..TM,etc., but, rather,establish a period of limitation within which an actionmust be brought for the assertion of any such claim.We suziit that, since such a warranty must be deemed torefer to the condition of the goods at time of sale,there is no disadvantage to the consumer in requiring himto assert failures attributable to the condition of thegoods at time of sale in a seasonable fashion.

The expression of duration of the warrantycontained in the above-cited amendments does not, infact, prevent the claimant frc bringing an action forasserted breach of an implied warranty for a two— orfour—year period after the expiration of the duration,and this seems to us to defeat your intent in propounding these amendments.

Liability for Non-Performaice ofExpress Warranties

Section 1794, both in the original Act andas amended, is unclear with respect to the identity ofthe person who may be held responsible for the non-performance of an express warranty.

In the case of certain kinds of consumer goods,such as small or major household appliances, manufacturersnot infrequently establish their own factory service outlets somewhere in the state. In the case of automobilemanufacturers, this is not done; rather, the manufacturercompels all enfranchised dealers to agree to performwarranty work. The customer is then transacting hiswarranty business with an entity other than the manu—fturer.

If the dealer is unable to repair or replacethe defect, is he subject to suit for treble damagesand attorneys fees by the customer? If the cause ofcomplaint is not capable of repair within thirty daysbecause of unavailability of parts0 etc.. to the individual dealer for reasons which are not excusable onthe part of the manufacturer, is the repairing dealerthen to be subject to the extraordinary damage?


. .

!i Honorable Alfred H. SongCalifornia State SenatePage 4April 14, 1971

We raise these questions and submit thatSection 1794 should be clarified to establish theresponsibility for treble damages and attorne’s feesagainst the manufacturer1 and not against the repairingdclcr, but that, if it be the intent to impose directrespoisibi1ity, under certain conditions, against therepairing dealer, those conditions should be spelled outand limited to circwtstances where he, rather than themanufacturer, is the source of fault. The only circum—stances which we can foresee where dealer liability wouldbe justifiable, would be imcompetent performance or inexcusable delay on his part, and we request that clarification of the policy of the Legislature in theseregards should be essential to the proper execution ofresponsibilities and the avoidance of the involvementof dealers in treble damage suits0 where the fault isthat of the manufacturer.

Warranties On Used Vehicle Sales IThe amendments to the Act have removed iused

goods from the general application of the Act, but re-.insert responsibilities on the sale of used goods, wherethe dealer makes an express warranty of any kind.

We previously pointed out that, while it isreadily possible for vehicle dealers to sell all usedcats on an Was 19N basis and, thus, be free of responsibility for implied warranties, of any kind, it has beencommon practice to afford to the customer some limitedprotection, and that this has been to the advantage ofthe consumer. Most commonly, such protection has beenin the form of a limited “guarantee”, affording to thecustomer, for a thirty—day or similar period, a discountor sharing of the cost of parts or services necessaryto repair the vehicle.

These used car guarantees have proven usefuland advantageous, but the policy of the present Act andthe proposed amendments thereto appear to tell bothsellers and the buying public that they may not havethe advantage of this type of protection in an “as is”sale. We urge again that th Act is not in the best


e Honorable Alfred H. SongCalifornia State SenatePage 5April 14, 1971

interest of consumers in this context. In inormaldiscussions with Mr.. Thompson, of your staff, wegathered that, in proposing these amen&ents. you feltthat customers would be confused or misled by the useof such limited guarantees, and that the po1iy of thestate should be against their use in an “as is” sale.However, it was suggested that there was nothing inconsistent about a dealer electing to comply with theprovisions of Section 1794.4, which permits “the saleof a service contract” to a buyer. It seems tous thatthe distinction is a purely seisantical one, (exdept forthe apparent requirement that the service contzact” besold to the buyer). Is there any policy zeasonrwhy theservice contract may not be fu’nished without separatecompensation, and, if this is so, is the customer anymore or less confused or niisid by the semanticaldistinction between the words used car guarante” and“service contract”, as long as either of these fullyand conspicuously disclose, in simple and readily under—stand&ble language, the terms and conditions?

We have commented on the use of the words “duration of the implied warranty... in SectIon 1795.5 (c).but we have this addijonal comment: In the caée of asale of used goods, if the dealer does give anywarrantywhatsoever, however limited, this extension of the impliedwarranties compels him to guarantee that the vehicle is,and will remain, fit for use for a period of three months,and we submit that this compounds the problem of furnishing the purchaser of an “as is” vehicle with any protectionby discount or sharing of repair costs en a prçentagebasis, or for a period of time less than that compelledby the implied warranty

In substance, what we are saying is that, inan effort to protect consumers, the aspects of the lawjust discussed will force motor vehicle dealersto cutcustomers adrift by arbitrarily selling every usedvehicle on a raw “as is” basis, without any assistancein the event of ensuing defects1 and this is not in theinterest of the consuming public.

we ‘ould invite your consideration of theseconurents in the further formulation and refinement of


The !onora.z31e Alfred ii. SongCalifornia State SenatePage 6April 14. 1971

the proposed amendments to the Sonq—Beverly ConsumerWarranty Act.

Very tru1yrs,

/1irfb WALlACE OCC*NELL

1/


aJJHIHXI


iVr’42

April 16, 1971

Mr. Wallace O’connellPartridge O’Connell & PartridgeAttorneys at Lw2400 Shell Building100 Bush StreetSan FranciscO, California 94104

Dear 1. O’Connell:

Senator song has asked me to reply to your letter regarding theSong—Beverly Consumer Warranty Act.

You raise some very interesting points with respect to the duration of implied War*anties. Perhaps the language we use in theAct and in SB 742 is not sufficiently clear,

We certainly agree with you that under the Tjniform consrcial codethe defect, for the purposes of implied warranties, muSt exist atthe time of sale, e intended to retain this concept in our Act,and we would expect thtt a plaintiff would have to show the detectto have existed at time of sale in order to prevail under our i’rt.

The periods of duration in Sections 1791.1 and 1795.5 are limitations on the time in which a latent defect may surface and createliability for the warrantor. After the expiration of these periodsthe warrantor is no longer responsible for those defects existingat time of sale under the terms of our Act. This is reiLforced bySection 1794.3 which provides that the Act Bha.LJ. not apply to anydefect caused by unauthorized or unreasonable use,

Should we abandon this approach for your auggeatton of a statuteof limitations, we would, of courses have to greatly extend theapecifid periods in order to achieve an equitable result. I doubtthat this would be welcomed by many manufacturers.

We will, however, continue to examine the sections to improve theirwording, nd We will continue to welcome any suggestions you mayhave.


ir. Wallace G’Connell April 16, 1971

we r!O not share your views that Section 1794 is unclear with respectto liability, at least as far an the automobile industry is concerned. Automobile dealers certainly qualify as manufacturera service facilities under the terse of Section 1793.2 (a) (1). 1bua,for the purpose of the Act, the dealer is the agent of the inanufac—turer.

As a practical matter, were a consumer to sue under the Act, he wouldcertainly name both the dealer and the manufacturer. Allocation ofthe blame between these two parties would, as before, have to besettled between the of them.

Our basic philosophy in proposing this Act was to limit the processees of our free enterprise system as little as possible, we be-’lieve that the relationship between dealer and manufacturer shouldbe determined on the basis of free negotiation, and we see no needto interfere in this process.

Your final point, as to the value of presnt used car warranties,is to a large extent a question of public policy that will be’de—cided by the Legislature. You may be correct that the distinctionbetween a warranty and a service contract is purely one of semantics, but uch is often the most important kind. I believe thatthe words “guarantee” and “warranty” do possess a meanng that“service contract” does not sIre.

In short9 we think that an “as Ls sale, with or without a servicecontract, will better inform the public as to what they are actuallybuyinc than a a1e dccompanied by the eprLs warrantLe presei4tlyused in the used car trade.

These are our ,nitial feelings. Senator Soflg has asked me to assureyou, however, that his mind is not closed on any of these subjects,and that he finds suggestions such as these most important in thedevelopment of good lislation.

incerely,

aIC!WaD THOMSNAdm.nistrative Assistant

RT/ny


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CHAiHMANSENATE COMMiTTEE ON JUDICIARY

NOvember 5, 1971

The Honorable Ronald ReaganGovernor of CaliforniaState capitolSacramento, California 95814

Re: SB 742

Dear Governor Reagan:

Sn 742 has passed the Legislature and has been sent to youroffice for your approval.

Last year the Song—Beverly Consumer Warranty Act was enacted,containing, like most new pieces of legislation1 its share of loopholes and ambiguities. The present bill, SB 742, is a clean-upbill. Its sole purpose is to clarify what is presently law so thatmanufacturers, retailers, and consumers will have a more accurateidea of the nature of their rights and responsibilities.

Spec I fically:

— Section 1791 (a) amends present law to make clear whichclasses of products fall within the definition of “consumer goods”in the song—Beverly Act.

— Section 1791.1 specifies the duration of implied warrantiesattaching to products also covered by an express Warranty, thuspermitting warrantors to cost accurately their warranty obligations.— SectiOn 1793,1 clarifies the responsibilities of the war—rantors maintaining service and repair facilities to notify theircustomers of the location of these service and repair facilities.— SectiOns 1793.2 ad 1793.3 restate the rules determiningwho is to pay the costs of transporting defective products to andfrom the facility at which the warranty servicing takes place.


““1 .The Honorable Ronald Reagan —2— November 5, 1971

sections 1791 and 1795.5 distinguish the differences in theway the Act applies to new and to used goods.

There are numerous other changes sharpening the language,clarifying intent, and making sure that the Song—Beverly Act conforms with definitions in the Uniform commercial code.

SB 742 has been examined in detail with representatives ofthe california Retailers Association, California Manufacturers.General Motors, General Electric, and the chamber of Commerce.These organizations support the bill. There is no knawn opposition.

? iespect request that you sign this bill into law.

ALFRED H. SONG

Ails/ny

Enclosure

S


CERTIFICATE OF SERVICE I hereby certify that on December 23, 2015, I electronically filed the foregoing REQUEST FOR JUDICIAL NOTICE; DECLARATION OF JAN S. RAYMOND with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. Signature: s/ John A. Taylor, Jr.


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