IN THE SUPREME COURT OF 

CALIFORNIA

LISA NIEDERMEIER,

Plaintiff and Respondent,

v.

FCA US LLC,

Defendant and Appellant.

S266034

Second Appellate District, Division One

B293960

Los Angeles County Superior Court

BC638010

March 4, 2024

Justice Evans authored the opinion of the Court, in which 

Chief Justice Guerrero and Justices Corrigan, Liu, Groban, 

and Jenkins concurred.

Justice Kruger filed a concurring opinion, in which Justices 

Groban and Jenkins concurred.
1

NIEDERMEIER v. FCA US LLC

S266034

Opinion of the Court by Evans, J.

California’s lemon law protects consumers who purchase 

defective vehicles or other goods. The lemon law, officially 

known as the Song-Beverly Consumer Warranty Act (Civ. Code, 

§ 1791 et seq.;1 hereafter the Act or the Song-Beverly Act),

permits new vehicle buyers who have been damaged by a 

manufacturer’s failure to comply with the Act to sue under 

section 1794 for the recovery of damages and other relief. 

(§ 1794, subd. (a).) The measure of a buyer’s damages in such 

an action includes “replacement or reimbursement as set forth 

in subdivision (d) of Section 1793.2 . . . .” (Id., subd. (b).) If a 

manufacturer is unable to repair a new vehicle after a 

reasonable number of attempts, section 1793.2, subdivision (d)

requires the manufacturer to promptly replace the vehicle or 

promptly pay restitution “in an amount equal to the actual price 

paid or payable by the buyer,” as specified. (Id., subd. (d)(2)(B).) 

The manufacturer is entitled to reduce the amount of restitution 

by the “amount directly attributable” to the buyer’s use of the 

vehicle prior to the time the buyer first delivered the vehicle for 

repair. (Id., subd. (d)(1); see also id., subd. (d)(2)(C).)

The questions before us are whether, in an action under 

section 1794, the statutorily-defined measure of restitution set 

forth in section 1793.2, subdivision (d)(2) (hereafter sometimes 

1 All further statutory references are to the Civil Code 

unless otherwise indicated.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

2

referred to as the statutory restitution remedy) must be reduced 

by proceeds a buyer has received when trading in or selling a 

defective vehicle and, if so, whether the reduction should be 

assessed before or after penalties are calculated.2 The Court of 

Appeal below held that the statutory restitution remedy did not 

include the amount a plaintiff recovered after trading in a

defective vehicle, and thus reduced the plaintiff’s damages 

award by the trade-in amount (here, $19,000). (Niedermeier v. 

FCA US LLC (2020) 56 Cal.App.5th 1052, 1060, 1061 

(Niedermeier).) 

We conclude that in an action pursuant to section 1794,

neither a trade-in credit nor sale proceeds reduce the statutory 

restitution remedy set forth in section 1793.2, subdivision (d)(2)

at least where, as here, a consumer has been forced to trade in 

or sell a defective vehicle due to the manufacturer’s failure to 

comply with the Act. Given this conclusion, we do not reach the 

issue of when such a reduction, if it were authorized, should be 

assessed. Accordingly, we reverse the judgment of the Court of 

Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2011, Lisa Niedermeier purchased a new Jeep 

Wrangler (hereafter the vehicle) from FCA US LLC (hereafter 

FCA) for approximately $40,000. Almost immediately, and 

2 As Niedermeier had traded in her vehicle, the issue before 

the Court of Appeal was limited to whether the restitution 

remedy included the amount Niedermeier recovered by trading 

in the vehicle. FCA US LLC, however, assumes the same 

analysis applies to proceeds from the sale of a defective vehicle, 

and we find that the outcome would remain the same regardless

of whether a buyer trades in or sells a defective vehicle. Our 

analysis therefore encompasses both circumstances throughout.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

3

throughout the warranty period, Niedermeier experienced a 

variety of problems with the vehicle’s transmission, engine, and 

exhaust. These problems caused the vehicle to jerk, make 

rattling and grinding noises, and emit noxious gases. They 

caused the floorboard of the vehicle to heat up and impaired the 

vehicle’s braking, acceleration, and turning. Niedermeier 

presented the vehicle to FCA’s authorized repair facilities a total 

of 16 times over four years, but the facilities were unable to 

remedy the defects. Niedermeier’s vehicle was out of 

commission for 75 days during the failed repair attempts.

In April 2015, Niedermeier asked FCA to buy back the 

vehicle, but FCA declined. Niedermeier renewed her request in

early June 2015, and made a third buyback demand in late June 

2015. FCA, however, declined to repurchase the vehicle. By the

time Niedermeier made the third buyback request, she had 

presented the vehicle for repair 14 times. In October 2015, after 

additional repair attempts failed, Niedermeier traded in the 

vehicle for a new GMC Yukon. The purchase price of the Yukon 

was $80,000, and the dealership gave Niedermeier a $19,000

trade-in credit towards that purchase.

In October 2016, Niedermeier filed a lawsuit against FCA 

asserting causes of action for breach of express warranty under 

the Act, breach of implied warranty under the Act, fraudulent 

inducement and concealment, and negligent repair. A jury 

found in Niedermeier’s favor on her claims for breach of express 

warranty and breach of implied warranty and awarded her 

$98,961.08. The jury found against Niedermeier on her claim 

for fraudulent inducement/concealment. The jury also found 

that FCA willfully violated the Act. The damages award

included: the purchase price of the vehicle, including charges 

for transportation and manufacturer-installed options, finance 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

4

charges, sales tax, license fees, and other official fees pursuant 

to section 1793.2, subdivision (d)(2)(B), a total of $39,799; 

incidental and consequential damages of $5,000; and a 

deduction of $5,214.57, reflecting the amount attributable to 

Niedermeier’s use of the vehicle before she first delivered it to 

FCA’s authorized facilities for repairs pursuant to 

section 1793.2, subdivision (d)(2)(C). The award also included a 

penalty of $59,376.65 pursuant to section 1794, subdivision (c)

due to FCA’s willful failure to repurchase the vehicle.

Following the verdict, FCA filed a postjudgment motion 

requesting a $19,000 offset from the awarded damages (the 

amount of the trade-in credit Niedermeier received on the 

Yukon’s purchase price), to be imposed before the civil penalty 

was assessed. This would have resulted in a total award of 

$51,461.07. The trial court denied FCA’s motion. It reasoned 

that reducing the jury’s award by the trade-in amount would be 

inconsistent with the pro-consumer policy supporting the Act. 

The court concluded an offset for the trade-in “would reward 

defendant for its delay in replacing the car or refunding 

plaintiff’s money when defendant had complete control over the 

length of that delay, and an affirmative statutory duty to replace 

or refund promptly. . . . ‘No one can take advantage of his own 

wrong.’ (§ 3517.) Nor can principles of equity be used to avoid 

a statutory mandate.”

FCA appealed. It made three arguments before the Court 

of Appeal: (1) by obtaining a full refund under section 1793.2, 

subdivision (d)(2) in addition to proceeds from the trade-in of the 

vehicle, Niedermeier received a windfall, which is inconsistent 

with the concept of restitution; (2) provisions of the California 

Uniform Commercial Code incorporated into section 1794 of the 

Act recognize that a buyer’s recovery is reduced by the amount 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

5

the buyer obtains by reselling the vehicle; and (3) allowing 

Niedermeier a full refund on top of trade-in proceeds she 

received would undermine legislative protections for 

downstream consumers in the used car market by effectively 

nullifying the Act’s requirement that manufacturers notify 

subsequent purchasers of defects in reacquired vehicles.

The Court of Appeal agreed with FCA’s first and third 

arguments and reversed. It declined to consider FCA’s second 

argument. The Court of Appeal held, as a matter of first 

impression, that the Act’s restitution remedy — “set at ‘an 

amount equal to the actual price paid or payable’ for the 

vehicle” — does not include any amount a plaintiff receives from

trading in the defective vehicle. (Niedermeier, supra, 56 

Cal.App.5th at p. 1061.) The Court of Appeal reasoned that the 

Legislature’s use of the word “restitution” in section 1793.2, 

subdivision (d)(2)(B) indicates an intent to restore the status 

quo ante as far as practicable and return buyers to the financial 

position they would have been in had they not purchased the 

vehicle. (Niedermeier, at p. 1071.) It concluded that allowing 

Niedermeier the full restitution remedy after she received a

credit for trading in the vehicle would place her in a better 

position than if she had never purchased the vehicle, a result 

inimical to the concept of restitution. (Ibid.)

The Court of Appeal also opined that allowing the full 

restitution refund under section 1793.2, subdivision (d)(2)(B) 

would thwart the lemon law’s labeling and notification 

requirements. It noted that the labeling and notification 

provisions are only triggered when a manufacturer reacquires 

the defective vehicle. It reasoned that allowing buyers to 

recover the full restitution remedy after receiving trade-in 

proceeds would incentivize buyers to reintroduce defective 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

6

vehicles into the market without the statutorily required Lemon

notifications, rendering the labeling and notification provisions 

“largely meaningless, a result contrary to the rules of statutory 

construction.” (Niedermeier, supra, 56 Cal.App.5th at p. 1072.)

We granted review. Since that time, another division of 

the Second Appellate District has disagreed with Niedermeier

and held that a manufacturer is not entitled to a reduction in

restitution damages under section 1793.2, subdivision (d)(2) for 

the net cash a plaintiff receives after selling a defective vehicle 

to a third party. (Figueroa v. FCA US, LLC (2022) 

84 Cal.App.5th 708, 713–714 (Figueroa).) We granted review in 

Figueroa on February 1, 2023, and deferred further action in 

that matter until after this case is decided.

More recently, the Third Appellate District also disagreed 

with Niedermeier. It agreed with Figueroa that a buyer’s 

restitution under the Act does not exclude the credit a buyer 

receives when trading in a defective vehicle. (Williams v. FCA 

US LLC (2023) 88 Cal.App.5th 765, 772 (Williams).) The court

concluded that the jury impermissibly deducted the buyer’s 

$29,500 trade-in credit when calculating the actual price paid or 

payable as provided in the statutory restitution remedy. (Id. at 

p. 786.) We granted review in Williams on May 3, 2023, and 

deferred further action in that matter until after this case is 

decided.

II. DISCUSSION

We are first asked to determine whether a consumer’s 

restitution damages award, defined in section 1793.2, 

subdivision (d)(2), must be reduced by the proceeds the 

consumer receives after trading in or selling a defective vehicle. 

This is a question of statutory construction, which we review de 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

7

novo. (Apple, Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) 

As with all cases of statutory interpretation, “[w]e first examine 

the statutory language, giving it a plain and commonsense 

meaning. [Citation.] We do not consider statutory language in 

isolation; instead, we examine the entire statute to construe the 

words in context. [Citation.] If the language is unambiguous, 

‘then the Legislature is presumed to have meant what it said, 

and the plain meaning of the language governs.’ ” (Kirzhner

v. Mercedes–Benz USA, LLC (2020) 9 Cal.5th 966, 972

(Kirzhner).) Further, “there is no need for construction, nor is it 

necessary to resort to indicia of the intent of the Legislature” to 

interpret the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d 

727, 735.)

On the other hand, “ ‘[i]f the statutory language permits 

more than one reasonable interpretation, courts may consider 

other aids, such as the statute’s purpose, legislative history, and 

public policy.’ ” (Kirzhner, supra, 9 Cal.5th at p. 972.) When 

more than one statutory construction is arguably possible, our 

policy is “ ‘to favor the construction that leads to the more 

reasonable result.’ [Citation.] This policy derives largely from 

the presumption that the Legislature intends reasonable results 

consistent with the apparent purpose of the legislation. 

[Citation.] Thus, our task is to select the construction that 

comports most closely with the Legislature’s apparent intent, 

with a view to promoting rather than defeating the statutes’ 

general purpose, and to avoid a construction that would lead to 

unreasonable, impractical, or arbitrary results.” (Imperial 

Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 388.) We 

also keep in mind that the Act is “ ‘manifestly a remedial 

measure, intended for the protection of the consumer; it should 

be given a construction calculated to bring its benefits into 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

8

action.’ ” (Murillo v. Fleetwood Enterprises, Inc. (1998) 

17 Cal.4th 985, 990 (Murillo); see also People ex rel. Lungren v. 

Superior Court (1996) 14 Cal.4th 294, 313 [“civil statutes for the 

protection of the public are, generally, broadly construed in 

favor of that protective purpose”]; see Pineda v. WilliamsSonoma Stores, Inc. (2011) 51 Cal.4th 524, 530 (Pineda) 

[liberally construing § 1747.08 of the Song-Beverly Credit Card 

Act].)

A. The Plain Text of Section 1794 and the

Statutory Restitution Remedy Do Not Support 

an Offset for a Trade-in Credit or Sale Proceeds

Resolution of the first issue before us requires us to 

interpret several interrelated provisions of the Act. First,

section 1794, subdivision (a) permits a buyer who “is damaged 

by a failure to comply with any obligation” under the Act or 

under an implied or express warranty or service contract to 

“bring an action for the recovery of damages and other legal and 

equitable relief.” (§ 1794, subd. (a).) “The measure of the 

buyer’s damages in an action under this section shall include the 

rights of replacement or reimbursement as set forth in 

subdivision (d) of Section 1793.2, and the following: 

[¶] (1) Where the buyer has rightfully rejected or justifiably 

revoked acceptance of the goods or has exercised any right to 

cancel the sale, Sections 2711, 2712, and 2713 of the 

Commercial Code shall apply. [¶] (2) Where the buyer has 

accepted the goods, Sections 2714 and 2715 of the Commercial 

Code shall apply, and the measure of damages shall include the 

cost of repairs necessary to make the goods conform.” (Id., subd.

(b).)
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

9

In turn, section 1793.2, subdivision (d)(2) of the Act 

provides that if a manufacturer or its representative “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 shall either promptly replace the 

new motor vehicle in accordance with subparagraph (A) or 

promptly make restitution to the buyer in accordance with 

subparagraph (B). However, the buyer shall be free to elect 

restitution in lieu of replacement, and in no event shall the 

buyer be required by the manufacturer to accept a replacement 

vehicle.”3

The Act provides a specific formula for calculating the 

amount of restitution. According to the Act, “the manufacturer 

shall make restitution in an amount equal to the actual price 

paid or payable by the buyer, including any charges for 

transportation and manufacturer-installed options, but 

3 Section 1793.2, subdivision (d)(2) has dual purposes. 

First, it (along with the other subdivisions of § 1793.2) instructs 

manufacturers about what they must do to comply with the Act 

when a vehicle proves defective. (See generally Kirzhner, supra, 

9 Cal.5th at p. 971 [§ 1793.2, subd. (d)(2) “sets forth the 

manufacturer’s affirmative obligation to ‘promptly’ repurchase 

or replace a defective vehicle it is unable to repair” and describes 

how manufacturers must offer replacement or restitution in 

order to comply with the Act].) Second, section 1793.2, 

subdivision (d)(2) includes the right to reimbursement as a 

measure of damages in an action pursuant to section 1794. (See 

Kirzhner, at pp. 971–972 [§ 1794 is “the Act’s general damages 

provision” and permits buyers to seek damages, “the measure of 

which includes the restitution and replacement remedies”].) 

The question before us today involves the latter purpose of 

section 1793.2, subdivision (d)(2), and our analysis is therefore

limited to the issue of the calculation of damages in a lawsuit 

under section 1794.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

10

excluding nonmanufacturer items installed by a dealer or the 

buyer, and including any collateral charges such as sales or use 

tax, license fees, registration fees, and other official fees, plus 

any incidental damages to which the buyer is entitled under 

Section 1794, including, but not limited to, reasonable repair, 

towing, and rental car costs actually incurred by the buyer.” 

(§ 1793.2, subd. (d)(2)(B).) The amount to be paid to the buyer 

may also “be reduced by the manufacturer by that amount 

directly attributable to use by the buyer prior to the time the 

buyer first delivered the vehicle to the manufacturer or 

distributor, or its authorized service and repair facility for 

correction of the problem that gave rise to the nonconformity.” 

(§ 1793.2, subd. (d)(2)(C).) Offsets for nonmanufacturer items 

installed by a dealer or buyer and the buyer’s predelivery use of 

the vehicle are the only reductions to the restitution remedy 

enumerated in section 1793.2, subdivision (d).

1. The Statutory Restitution Remedy Does Not Allow 

a Restitution Award to Be Reduced by a Trade-in 

Credit or Sale Proceeds

The parties disagree how the restitution remedy in

section 1793.2, subdivision (d)(2) should be interpreted. The 

parties specifically disagree whether the amount Niedermeier 

received when she traded in the defective vehicle should be 

excluded from the statutory restitution remedy. Niedermeier 

argues the Act’s plain language lays out the precise measure and 

scope of restitution and does not permit any reduction in the 

restitution award by the amount of a trade-in credit. 

Notwithstanding the Act’s defined restitution formula,

including its express reference to specific permissible offsets, 

FCA argues that restitution should be given the same meaning 

as provided in common law. According to FCA, Niedermeier’s 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

11

restitution award should be reduced by the amount she 

recovered when trading in the vehicle in order to avoid a double 

recovery.

We agree with Niedermeier and conclude the plain 

language of the Act does not support FCA’s construction of 

section 1793.2. As noted above, the Act’s plain language lays 

out a specific formula for calculating the amount of restitution

to be paid by the manufacturer as damages in an action 

pursuant to section 1794. The statutory restitution remedy has 

clearly enumerated exceptions, none of which includes the offset 

requested by FCA. (Accord, Figueroa, supra, 84 Cal.App.5th at 

p. 712 [“[t]he statute is clear and unequivocal”]; Williams, 

supra, 88 Cal.App.5th at p. 780 [“[a]lthough the Legislature 

used the word ‘restitution’ in section 1793.2, subdivision (d), it 

clearly defined that term in the restitution provision by stating 

it is ‘an amount equal to the actual price paid or payable by the 

buyer,’ a calculus that includes and excludes specified costs” 

(original italics)].)

Nowhere does section 1793.2 provide that a restitution 

award must be reduced by any amount a buyer receives when

trading in or selling the defective vehicle to a third party. In 

order to adopt FCA’s statutory construction, we would have to 

ignore the words following “restitution” in section 1793.2, 

subdivision (d)(2)(B), including “paid or payable” and the 

enumerated exceptions. “[O]ur office is simply to ascertain and 

declare what the statute contains, not to change its scope by 

reading into it language it does not contain or by reading out of 

it language it does. We may not rewrite the statute to conform 

to an assumed intention that does not appear in its language.” 

(Vasquez v. State of California (2008) 45 Cal.4th 243, 253; see 

also Jiagbogu v. Mercedes–Benz USA (2004) 118 Cal.App.4th 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

12

1235, 1241 (Jiagbogu) [“We may not rewrite the section to 

conform to that unexpressed, supposed intent”]; see also 

Figueroa, supra, 84 Cal.App.5th at p. 712 [“We cannot add 

words to a clear and unequivocal statute”].)

As noted above, the statute excludes nonmanufacturerinstalled options from the restitution calculation (§ 1793.2, 

subd. (d)(2)(B)) and permits the restitution award to be reduced 

by the amount of a buyer’s predelivery use of the vehicle (id., 

subd. (d)(2)(C)). The choice to include these exceptions, and no 

others, indicates that the Legislature intended to specify how 

restitution awards for new motor vehicles must be calculated, 

including limiting the number and type of offsets to those 

explicitly enumerated.

4

 The Legislature recognized there were 

multiple sources of potential offsets to the restitution remedy

yet did not include trade-in credits or sales proceeds in the 

statute. The Legislature could have stated that trade-in or sale 

amounts were to be offset or reduced from the statutory 

restitution remedy. It did not do so. “We will not create an 

4

Indeed, in section 1793.2, subdivision (d), the measure of 

restitution is defined differently for “goods” and “new motor 

vehicles.” For “goods,” restitution is defined as, “the purchase 

price paid by the buyer, less that amount directly attributable 

to use by the buyer prior to the discovery of the nonconformity.”

(§ 1793.2, subd. (d)(1).) We have thus held that section 1793.2, 

subdivision (d) “treats the special provisions applicable to new 

motor vehicles in subdivision (d)(2) as an exception to the 

general provision applicable to all consumer goods in 

subdivision (d)(1)[,]” as subdivision (d)(2) “provides additional 

specifications for both the refund and restitution remedies.” 

(Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 490–

491, italics added; see also id. at p. 491 [“If restitution is 

selected, the amount is to be calculated as specified by the 

statute”].)
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

13

exception the Legislature did not enact.” (Lopez v. Sony 

Electronics, Inc. (2018) 5 Cal.5th 627, 636.)

Moreover, trade-in or sale proceeds obtained years after 

the purchase of a defective vehicle are not part of “the actual 

price paid or payable” because they are separate and apart from 

the settled purchase price of the vehicle at the time of 

contracting. In our recent opinion in Kirzhner, we explained

that the “actual price paid or payable” is determined at the time 

of the vehicle’s purchase. (Kirzhner, supra, 9 Cal.5th at 

pp. 974–975.) In Kirzhner, we were tasked with determining 

whether vehicle registration renewal and nonoperation fees 

plaintiff paid after initially leasing his vehicle were recoverable

as collateral charges or as incidental damages under 

section 1793.2, subdivision (d)(2)(B). We held that the charges 

were not recoverable as collateral charges because they “are not 

auxiliary to and do not supplement the price paid [for the 

vehicle] because they are not paid as part of the total cost of the 

vehicle and in exchange for the vehicle.” (Kirzhner, supra, 

9 Cal.5th at p. 975.)

We rejected Kirzhner’s argument that the phrase “actual 

price paid or payable” indicated a legislative intent to ensure the 

manufacturer paid the consumer what the consumer actually 

paid as of the time of the repurchase rather than at the time of 

contracting. We explained, “[t]he word ‘price’ means ‘[t]he cost 

at which something is obtained’ or ‘[t]he consideration given for 

the purchase of a thing.’ ” (Kirzhner, supra, 9 Cal.5th at 

pp. 972–973, citing Black’s Law Dict. (6th ed. 1990) p. 1188, 

col. 2); see also Black’s Law Dict. (11th ed. 2019) [price means 

“[t]he amount of money or other consideration asked for or given 

in exchange for something else; the cost at which something is 

bought or sold”].) We noted the word “ ‘payable’ ” in 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

14

section 1793.2, subdivision (d)(2)(B) modifies the word “ ‘price’ ” 

and simply acknowledges that some buyers do not pay the full 

cost of the vehicle at the time of the initial purchase or lease, but 

does not demonstrate that all later-incurred charges or expenses 

connected to ownership or use of vehicle are recoverable. 

(Kirzhner, at p. 974.) We concluded, however, that the charges

would be recoverable as incidental damages if they were 

incurred as a result of the manufacturer’s failure to promptly 

provide a replacement vehicle or restitution under section 

1793.2, subdivision (d)(2). (Kirzhner, at p. 977.)

The Court of Appeal here acknowledged section 1793.2, 

subdivision (d)(2)(B) defines restitution as “the actual price paid 

or payable,” but declined to follow a plain language reading of

the statute. Relying on Mitchell v. Blue Bird Body Co. (2000) 

80 Cal.App.4th 32 (Mitchell), it found the Legislature’s choice of 

the word “restitution” significant in this case and reasoned that 

a literal interpretation of the statute would disregard the 

Legislature’s word choice, allow Niedermeier “to recover far 

more from [FCA] than her actual economic loss[,]” and result in 

an unjustified windfall to Niedermeier. (Niedermeier, supra, 

56 Cal.App.5th at p. 1071.)

We find the Court of Appeal’s reliance on Mitchell to be 

misplaced. In Mitchell, the court considered whether the “actual 

price paid or payable” in section 1793.2, subdivision (d)(2)(B)

included interest payments paid after a vehicle was purchased. 

It held the payments were part of the actual price paid or 

payable, and properly recoverable as restitution under the Act, 

because consumers become legally obligated to pay the 

payments at the time the vehicle is purchased or leased. 

(Mitchell, supra, 80 Cal.App.4th at p. 38.) It is true that the 

Mitchell court interpreted “restitution” as designating a remedy 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

15

meant “to restore ‘the status quo ante as far as is 

practicable . . . .’ ” (Id. at p. 36, italics omitted.) But Mitchell 

did not consider whether it was appropriate to reduce the 

statutory restitution remedy by the amount of a trade-in credit 

or sale proceeds in order to restore the status quo. Contrary to 

the Court of Appeal’s conclusion, Mitchell’s analysis suggests 

that reducing the restitution remedy by an amount not 

enumerated in section 1793.2, subdivision (d) would be 

inappropriate. The Mitchell court emphasized the remedial 

nature of the Act and explained that restoring the status quo

was intended to afford “ ‘complete relief, including restitution of 

benefits . . . and any consequential damages to which [the 

purchaser] is entitled . . . .’ ” (Mitchell, supra, 80 Cal.App.4th at 

p. 36.) It thus concluded that “the Legislature intended to allow 

a buyer to recover the entire amount actually expended for a 

new motor vehicle, including paid finance charges, less any of 

the expenses expressly excluded by the statute.” (Id. at p. 37, 

italics added.)

In interpreting “restitution,” the Mitchell court relied on 

Alder v. Drudis (1947) 30 Cal.2d 372, 384, in which we observed,

“The purpose of restitution as a remedy for breach is the 

restoration of the status quo ante as far as is practicable, and in 

the absence of qualifying circumstances, the plaintiff must 

return any consideration he has received in order to obtain 

specific restitution.” (Italics omitted.) Alder, however, predates 

the Act’s enactment by more than 20 years, did not concern 

breach of a product warranty, and considers only common law 

restitution and rules of equity. The plain language of 

section 1793.2, subdivision (d)(2), by contrast, indicates that the 

Legislature intended “restitution” to be “a term of art separate 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

16

from the evolving common law concept that shares the name.”

5

 

(Scholes v. Lambirth Trucking Co. (2020) 8 Cal.5th 1094, 1111; 

see also Metropolitan Water Dist. v. Superior Court (2004) 

32 Cal.4th 491, 500 [courts generally apply common law when a 

statute refers to a term without defining the term]; People v. 

Lopez (2003) 31 Cal.4th 1051, 1060 [“if a term known to the 

common law has not otherwise been defined by statute, it is 

assumed that the common law meaning was intended” (italics 

added)]; Williams, supra, 88 Cal.App.5th at p. 780 [same].) 

Moreover, “ ‘principles of equity [cannot] be used to avoid a 

statutory mandate.’ ” (Martinez v. Kia Motors America, Inc. 

(2011) 193 Cal.App.4th 187, 199 (Martinez), citing Jiagbogu, 

5 Notably, the statutory restitution remedy is consistently 

referenced throughout the Act by specific reference to 

section 1793.2, subdivision (d)(2) and its directive for 

calculating restitution. (See, e.g., §§ 1793.23, subd. (c) [labeling 

requirements include circumstances in which “the 

manufacturer knew or should have known that the vehicle is 

required by law to be replaced [or] accepted for restitution due 

to the failure of the manufacturer to conform the vehicle to 

applicable warranties pursuant to paragraph (2) of 

subdivision (d) of Section 1793.2”], 1793.25, subd. (a) [“State 

Board of Equalization shall reimburse the manufacturer of a 

new motor vehicle for an amount equal to the sales tax or use 

tax which the manufacturer . . . includes in making restitution 

to the buyer or lessee pursuant to subparagraph (B) of 

paragraph (2) of subdivision (d) of Section 1793.2”], 1794, 

subd. (b) [“The measure of the buyer’s damages in an action 

under this section shall include the rights of replacement or 

reimbursement as set forth in subdivision (d) of 

Section 1793.2”].) These repeated references to subdivision 

(d)(2) further indicate a legislative intent to attribute a specific

statutory restitution formula to the term “restitution” distinct 

from the common law definition. 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

17

supra, 118 Cal.App.4th at p. 1244.) The plain language of 

section 1793.2, subdivision (d)(2) does not contemplate an 

unenumerated reduction to the statutory restitution remedy for 

a trade-in credit or sale proceeds received after the purchase of 

a defective vehicle.

2. Section 1794’s Reference to the California Uniform 

Commercial Code Does Not Provide a Basis to 

Reduce Restitution Damages by a Trade-in Credit 

or Sale Proceeds

FCA next contends that Niedermeier’s damages must be 

reduced by the amount she received when she traded in the 

defective vehicle since section 1794, subdivision (b) incorporates 

California Uniform Commercial Code sections 2711 through 

2715. These provisions prohibit a double recovery and set forth 

a reduced measure of damages when a buyer resells goods. FCA

argues that because section 1794, subdivision (b) states that the 

measure of damages “shall include the rights of replacement or 

reimbursement . . . and” (italics added) the California Uniform 

Commercial Code remedies, the remedies identified in 

section 1793.2, subdivision (d) and the remedies identified in 

the California Uniform Commercial Code are not merely 

alternate measures of damages. Rather, FCA urges, the 

measure of damages must consider both the statutory 

restitution remedy and the relevant provisions of the California 

Uniform Commercial Code. Citing Kwan v. Mercedes-Benz of 

North America, Inc. (1994) 23 Cal.App.4th 174 (Kwan), Bishop 

v. Hyundai Motor America (1996) 44 Cal.App.4th 750 (Bishop), 

and Kirzhner, FCA argues the Legislature has made it clear that 

damages — including the restitution remedy — are measured in 

the same manner as, and subject to the general rules applicable 

to, ordinary contracts. 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

18

We conclude that the Act’s restitution and replacement 

remedies are distinct from the available California Uniform 

Commercial Code remedies referenced in section 1794, and the 

California Uniform Commercial Code remedies do not reduce 

the Act’s statutory restitution remedy. We also find that any 

attempt to reduce the statutory restitution remedy by the 

remedies set forth in the California Uniform Commercial Code 

would conflict with the Act, and the Act’s restitution remedy 

thus controls. (See § 1790.3.)

“[A]s the conjunctive language in Civil Code section 1794 

indicates, the statute itself provides an additional measure of 

damages beyond replacement or reimbursement (Civ. Code, 

§ 1793.2, subd. (d)) and permits, at the option of the buyer, the 

Commercial Code measure of damages which includes ‘the cost 

of repairs necessary to make the goods conform.’ (Civ. Code, 

§ 1794, subd. (b)(2).)” (Krotin v. Porsche Cars North America, 

Inc. (1995) 38 Cal.App.4th 294, 302 (Krotin), italics added.) 

Moreover, the plain language of section 1794 makes clear that 

“[t]he measure of the buyer’s damages in an action under this 

section shall include the rights of replacement or 

reimbursement as set forth in subdivision (d) of Section 1793.2, 

and [the California Uniform Commercial Code remedies].” 

(§ 1794, subd. (b), italics added.) The phrase “as set forth” 

indicates that the buyer is entitled to the statutory restitution 

remedy as distinctly and precisely described in section 1793.2, 

subdivision (d) in addition to any applicable remedies set forth 

in the California Uniform Commercial Code.

FCA’s statutory interpretation not only disregards the 

plain language of section 1794, it also ignores the overall 

statutory context. Section 1794 is intended to encompass all of 

the remedies available for failures to “comply with any 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

19

obligation under this chapter [i.e., the Act,]” as well as non-Act 

failures to comply with any obligation “under an implied or 

express warranty or service contract . . . .” (§ 1794, subd. (a); 

§ 1790; see also Kwan, supra, 23 Cal.App.4th at p. 180 

[“Section 1794 sets out the damages available to a buyer for a 

seller or manufacturer’s failure to comply with an obligation 

under the Act or under a consumer product warranty”].) 

Moreover, the Act provides that its remedies “are cumulative 

and shall not be construed as restricting any remedy that is 

otherwise available . . . .” (§ 1790.4, italics added.) We have 

similarly observed that the “pro-consumer remedies [of the Act] 

are in addition to those available to a consumer pursuant to the 

Commercial Code ( . . . § 1790.3) and the Unfair Practices Act 

( . . . § 1790.4).” (Murillo, supra, 17 Cal.4th at p. 990, italics 

added.)

The language of the statutory restitution remedy itself 

further supports our conclusion that it is distinct from the 

California Uniform Commercial Code remedies identified in 

section 1794. Section 1793.2, subdivision (d)(2)(B) requires the 

manufacturer to “make restitution in an amount equal to the 

actual price paid or payable by the buyer . . . plus any incidental 

damages to which the buyer is entitled under Section 1794.” 

(Italics added.) The inclusion of the word “plus” indicates that 

a buyer may receive damages available in the California 

Uniform Commercial Code in addition to the statutory 

restitution amount recoverable under section 1793.2, 

subdivision (d)(2). As the Court of Appeal explained in Krieger

v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213, 

the Act “supplements, rather than supersedes, the provisions of 

the California Uniform Commercial Code.” (See also § 1790.3; 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

20

§ 1794, subd. (b) [incorporating specific damages provisions of 

the Cal. U. Com. Code].) 

The California Uniform Commercial Code remedies 

referenced in section 1794 stand separate and apart from the 

remedies in section 1793.2, subdivision (d), and do not purport 

to limit the statutory restitution remedy in any way. This 

makes sense because the Act provides more extensive consumer 

protections than the California Uniform Commercial Code. 

(Krotin, supra, 38 Cal.App.4th at p. 301; see also Murillo, supra, 

17 Cal.4th at p. 989 [the Act “ ‘regulates warranty terms, 

imposes service and repair obligations on manufacturers, 

distributors, and retailers who make express warranties, 

requires disclosure of specified information in express 

warranties, and broadens a buyer’s remedies to include costs, 

attorney’s fees, and civil penalties.’ ”].) FCA cites no authority 

in which the Act’s statutory restitution remedy has ever been 

reduced by the provisions of the California Uniform Commercial 

Code referenced in section 1794, and its proposed reading would 

elevate the California Uniform Commercial Code over the 

remedies provided in the Act and be contrary to the Act itself. 

“The provisions of [the Act] shall not affect the rights and 

obligations of parties determined by reference to the 

Commercial Code except that, where the provisions of the 

Commercial Code conflict with the rights guaranteed to buyers 

of consumer goods under the provisions of [the Act], the 

provisions of [the Act] shall prevail.” (§ 1790.3.)

FCA’s reliance on Kwan, Bishop, and Kirzhner is 

misplaced. These cases address whether certain damages not 

explicitly enumerated in the Act were recoverable under it. 

(Kwan, supra, 23 Cal.App.4th at p. 192 [emotional distress 

damages not recoverable for violations of the Act]; Bishop, 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

21

supra, 44 Cal.App.4th at pp. 757–758 [emotional distress and 

loss of use damages for time period plaintiff had no replacement 

vehicle after defective vehicle was destroyed not recoverable 

under Act]; Kirzhner, supra, 9 Cal.5th at p. 981 [registration 

renewal and nonoperation fees incurred after purchase of 

vehicle not recoverable under the Act as collateral charges, but 

may be recoverable as incidental damages].) For various 

reasons, these cases found it appropriate to turn to the

California Uniform Commercial Code provisions referenced in 

section 1794 in order to determine whether such damages were 

recoverable. But none of these cases holds the restitution 

remedy may be reduced by reference to those California Uniform 

Commercial Code provisions. (See Kwan, supra, 23 Cal.App.4th 

at p. 187 [“Under section 1794, subdivision (b), the buyer’s 

remedies under the Act include, in addition to the refund-orreplace remedy of section 1793.2, subdivision (d), [California 

Uniform Commercial Code] damages as” stated in 

subsections (1) and (2) (italics added)]; Bishop, supra,

44 Cal.App.4th at p. 754 [in case of restitution, buyer is also 

entitled to, inter alia, incidental damages and civil penalty]; 

Kirzhner, supra, 9 Cal.5th at pp. 971–972 [measure of damages 

includes restitution and replacement remedies as well as

remedies allowed by the Cal. U. Com. Code].)

FCA argues a few out-of-state cases support a conclusion 

that the relevant provisions of the California Uniform 

Commercial Code should reduce the statutory restitution 

remedy.6 None of these cases, however, address the issue before 

6 See Gast v. Rogers-Dingus Chevrolet (Miss. 1991) 

585 So.2d 725; Roneker v. Kentworth Truck Co. (W.D.N.Y. 1997) 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

22

us: whether alternate California Uniform Commercial Code 

remedies should reduce damages calculated pursuant to the

express statutory restitution formula contained in California’s

lemon law. The cases cited by FCA merely found that damages 

for certain breaches of warranty were to be determined under 

the relevant state equivalents of the model Uniform Commercial 

Code. In California, as discussed above, the Uniform 

Commercial Code provides additional damages affected

consumers can elect to pursue under section 1794 if they wish

but it does not displace the statutory restitution remedy. (See 

Krotin, supra, 38 Cal.App.4th at p. 302.)

In sum, we hold that “restitution” has the meaning 

provided in section 1793.2, subdivision (d)(2)(B) and reducing a 

damages award by the amount of a trade-in credit or sale is not 

permitted by that statute or by section 1794’s incorporation of 

California Uniform Commercial Code remedies. FCA’s reading 

of sections 1794 and 1793.2, subdivision (d)(2) would force us to 

“ignore the actual words of the statute in an attempt to vindicate 

our perception of the Legislature’s purpose in enacting the 

law[,]” which is something we cannot do. (Murillo, supra, 

17 Cal.4th at p. 993.) 

B. Offsets for a Trade-in Credit or Sale Proceeds 

Are Not Consistent with the Legislative History 

of Sections 1794 and 1793.2, Subdivision (d) or 

the Purpose of the Act

As discussed above, we conclude that the language of 

section 1793.2, subdivision (d)(2) does not permit any reduction 

977 F.Supp. 237; Hibbs v. Jeep Corp. (Mo.Ct.App. 1984) 

666 S.W.2d 792; Sanborn v. Aranosian (1979) 119 N.H. 969.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

23

in the restitution award by the amount of a trade-in credit or 

sale. Nonetheless, FCA’s contention that restitution as detailed

in section 1793.2 should have the same meaning as common law 

restitution is not unreasonable on its face. By recovering the 

full statutory restitution remedy after receiving value for the 

vehicle in the form of a trade-in credit, it can be argued that 

Niedermeier was placed in a better financial position than if she 

had not purchased the vehicle. To resolve any potential 

ambiguity, we consider the legislative history of sections 1793.2 

and 1794 and the Act’s purpose. (Kirzhner, supra, 9 Cal.5th at 

p. 972.) We conclude that even if the statute is amenable to 

more than one reasonable interpretation, additional indicia of 

legislative intent support our holding that at least where, as 

here, a consumer has been forced to trade in or sell their vehicle 

due to the manufacturer’s failure to promptly pay restitution 

when its obligation arose, trade-in or sale proceeds do not reduce 

the statutory restitution remedy.

The Legislature adopted the Act in 1970 to address 

problems with enforcing consumer warranties for new products, 

including the problem of manufacturers reaping the advertising 

benefits of warranties without bearing the costs of promised 

repairs. (Stats. 1970, ch. 1333, § 1, p. 2478 et seq.) The original 

restitution remedy provided, “[s]hould the manufacturer be 

unable to make such return of merchantable goods, he shall 

either replace the goods or reimburse the buyer in an amount 

equal to the purchase price paid by the buyer, less that amount 

directly attributable to use by the buyer prior to discovery of the 

defect.” (Former § 1793.2, subd. (c), added by Stats. 1970, 

ch. 1333, § 1, p. 2481.)

In 1982, the Legislature amended the Act in several ways. 

It amended section 1793.2 to apply the “repair and replace” 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

24

provisions of the Act to “new motor vehicles” bought for personal 

use.7 (Jensen v. BMW of North America, Inc. (1995) 

35 Cal.App.4th 112, 123; Stats. 1982, ch. 388, § 1, pp. 1720–

1723.) The Legislature also added section 1794 to the Act to help 

consumers and courts understand the panoply of remedies 

available to buyers under different laws for breach of a 

consumer warranty by enumerating each of the remedies in one 

statute. (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 

1246, 1261; see also Dept. Consumer Affairs, Explanation and 

Analysis of Assem. Bill No. 3560 (1981–1982 Reg. Sess.) Mar. 

1982, p. 2 [“[t]he bill’s purpose and function is to consolidate and 

restate in a single section of the . . . Act the remedies now 

available to buyers under the Song-Beverly Act and other 

California and federal laws”]; see also ibid. [“This bill is 

essentially a consumer law ‘housekeeping’ bill whose function is 

to make our consumer warranty law more coherent, rational, 

understandable and effective”].) As originally enacted, section 

1794 provided in pertinent part that “[t]he measure of the 

buyer’s damages in an action under this section shall be as 

follows: [¶] (1) Where the buyer has rightfully rejected or 

justifiably revoked acceptance of the goods or has exercised any 

right to cancel the sale, Sections 2711, 2712, and 2713 of the 

Commercial Code shall apply. [¶] (2) Where the buyer has 

7 As amended, section 1793.2, subdivision (d) provided, 

“Should the manufacturer or its representative in this state be 

unable to service or repair the goods to conform to the applicable 

express warranties after a reasonable number of attempts, the 

manufacturer shall either replace the goods or reimburse the 

buyer in an amount equal to the purchase price paid by the 

buyer, less that amount directly attributable to use by the buyer 

prior to the discovery of the nonconformity.” (Stats. 1982, 

ch. 388, § 1, p. 1721.) 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

25

accepted the goods, Sections 2714 and 2715 of the Commercial 

Code shall apply, and the measure of damages shall include the 

cost of repairs necessary to make the goods conform.” (Former

§ 1794, subd. (b), added by Stats. 1982, ch. 385, § 2, p. 1716.) 

Although restitution and replacement were available remedies 

since the enactment of the Song-Beverly Act, they were not 

mentioned in the 1982 version of section 1794.

After these amendments to the lemon law, however, there 

were numerous complaints from new car buyers concerning its 

implementation, including that manufacturers were not paying 

full restitution or replacement awards and were seeking 

excessive offsets for rental cars. (See Dept. Consumer Affairs, 

Enrolled Bill Rep. on Assem. Bill No. 2057 (1987–1988 Reg. 

Sess.) Sept. 25, 1987, pp. 2–3; see also Assembly 3d reading 

analysis of Assem. Bill No. 2057 (1987–1988 Reg. Sess.) as 

amended June 11, 1987, at p. 4; Sen. Com. on Judiciary, 

Analysis of Assem. Bill No. 2057 (1987–1988 Reg. Sess.) as 

amended August 17, 1987, p. 3.)

As a result, the Legislature again amended the Act in 

order to protect consumers. Among other things, the 

Legislature amended section 1794 to clarify that a buyer’s 

damages include the rights of replacement and reimbursement 

and the California Uniform Commercial Code’s additional 

remedies, and amended section 1793.2, subdivision (d) to 

comprehensively explain how to calculate restitution. (See

Legis. Counsel’s Dig., Assem. Bill No. 2057 (1987–1988 Reg. 

Sess.) p. 2 [“This bill would revise the provisions relating to 

warranties on new motor vehicles to require the manufacturer 

or its representative to replace the vehicle or make restitution, 

as specified, if unable to conform the vehicle to the applicable 

express warranties after a reasonable number of attempts”
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

26

(italics added)]; see also Stats. 1987, ch. 1280, §§ 1, 2, 4; id., § 9, 

p. 4567 [amendment to section 1794 “does not constitute a 

change in, but is declaratory of, existing law”].)

FCA argues the 1982 version of section 1794 demonstrates 

that the Legislature intended for damages under the Act to be 

reduced by ordinary damages principles laid out in the 

California Uniform Commercial Code. But there is no indication 

in the legislative history that the reference to California 

Uniform Commercial Code remedies in section 1794 was 

intended to supplant or limit the statutory restitution remedy. 

To the contrary, the history is clear that the statute was 

intended to consolidate, not add to or subtract from, the existing 

remedies for the enforcement of a consumer warranty. (Dept. 

Consumer Affairs, Explanation and Analysis of Assem. Bill 

No. 3560 (1981–1982 Reg. Sess.) Mar. 1982, pp. 1, 4.) Had the 

Legislature intended for the statutory restitution remedy to be 

limited by the California Uniform Commercial Code provisions 

referenced in section 1794, “it would not have chosen such an 

obscure mechanism to achieve its purpose.” (Murillo, supra, 

17 Cal.4th at p. 992.) 

FCA also relies on legislative history addressing the 1970 

version of section 1794 to argue that the Legislature intended to 

apply ordinary contract rules whenever a consumer cannot 

return a defective vehicle. All three documents FCA relies 

upon — a letter from a legislative aide to Senator Song 

addressing the meaning of some language in the Act and two 

letters from the Legislative Counsel to Senators Cologne and 

Song, respectively, expressing various opinions in response to 

particular questions relating to the Act — are postenactment

documents and are entitled to little weight because they do not 

reflect the legislative body enacting the statute. (Quintano v. 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

27

Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062 [statements 

of an individual legislator, including bill author, are generally 

not considered in construing a statute; court’s task is to 

ascertain the intent of the Legislature as a whole]; Coker v. 

JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 690, citing 

Bruesewitz v. Wyeth LLC (2011) 562 U.S. 223, 242 [“ ‘[p]ostenactment legislative history (a contradiction in terms) is not a 

legitimate tool of statutory interpretation’ because ‘by definition 

[it] “could have had no effect on the [Legislature’s] vote” ’ ”].) 

With respect to the letters from the Legislative Counsel, FCA 

focuses on two responses addressing distinguishable factual 

scenarios. The first considers whether a manufacturer can 

refuse to replace, reimburse, or repair defective goods if (unlike 

here) the goods are not returned to be serviced at a service 

facility. The second asks whether a privately-owned public 

utility has any liability under the Act if it sells consumer goods 

and contracts with an independent contractor for installation. 

The responses do not address, and therefore shed no light on, 

the specific issue that is before us in the present case.

The legislative history reveals little legislative analysis 

addressing the language of the current statutory restitution 

remedy, including the meaning of “the actual price paid or 

payable.” (See also Mitchell, supra, 80 Cal.App.4th at p. 39

[“ ‘interpretive commentary’ on the statute’s replacement or 

refund remedy is practically nonexistent”].) Nevertheless, we 

can draw insight from the history of the amendments to 

sections 1793.2 and 1794. This history demonstrates that the 

Legislature intended to lay out a precise method for calculating 

restitution awards payable to buyers, including the amounts 

allowed to be reduced from awards.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

28

The evolution of the Act also indicates a legislative intent 

to ensure buyers receive full compensation under the Act, to 

make it easier for buyers to access all the benefits to which they 

are entitled under applicable warranties, and to constrain 

manufacturers from evading their statutory obligations. To this 

end, since its enactment, the Act “has been amended numerous 

times to broaden its consumer protection policy, expand the 

classes of vehicles to which the lemon law applies, lessen the 

types of defenses that can [be] asserted, and change the 

statutory text in response to appellate decisions.” (Frank, 

Lemon Law (Nov. 2016) 39 L.A.Law. 27, 32.) This counsels 

against reducing statutory restitution awards by trade-in 

credits or sales proceeds, when such reductions are not 

enumerated or authorized in section 1793.2, subdivision (d). 

Any such reduction would be inconsistent with the legislative 

history and the Act’s consumer protective purpose.

C. The Act’s Labeling and Notification Provisions 

Do Not Support an Offset to the Statutory 

Restitution Remedy for a Trade-in Credit or 

Sale Proceeds

FCA maintains that Niedermeier’s interpretation of the 

statutory restitution remedy would undercut the labeling and 

notification provisions in sections 1793.22 and 1793.23

(hereafter sometimes referred to as the labeling and notification 

provisions). It echoes the Court of Appeal’s concerns that 

Niedermeier’s interpretation “would incentivize buyers to 

reintroduce defective vehicles into the market without the 

warnings a manufacturer otherwise would have to provide” and 

“would render the labeling and notification provisions largely 

meaningless, a result contrary to the rules of statutory 

construction.” (Niedermeier, supra, 56 Cal.App.5th at p. 1072.) 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

29

In FCA’s view, no rational owner would return their defective 

vehicle to the manufacturer if they could instead resell their 

vehicles to third parties. The Court of Appeal similarly could 

not “conceive why a buyer would ever return a vehicle to the 

manufacturer rather than obtain the extra proceeds from a 

resale or trade. Return of the vehicle to the manufacturer would 

be the rare exception rather than the rule.” (Ibid.) We disagree.

As FCA concedes, sections 1793.22 and 1793.23 require 

manufacturers, not consumers, to label defective vehicles as 

lemons once they are reacquired. (§ 1793.22, subd. (f)(1) 

[manufacturers must provide a one-year warranty for all 

defective vehicles transferred to it under the Act]; § 1793.23, 

subds. (c)–(e).) Buyers have neither the obligation nor the 

ability to label their defective vehicles lemons. Had FCA 

promptly refunded Niedermeier when its obligation to do so 

arose, the defective vehicle could have been reacquired and 

labeled a lemon by the manufacturer. Buyers like Niedermeier 

are only confronted with the possibility of selling or trading in 

their defective vehicles after manufacturers have failed to 

comply with their obligation to promptly replace or repurchase 

the vehicle. When this occurs, buyers may have no choice but to 

engage in self-help to relieve themselves of the burden of owning 

or possessing a lemon. Contrary to the Court of Appeal’s focus, 

it is manufacturers, not buyers who are forced to trade in or sell 

their vehicles, who undercut the Act’s labeling and notification 

provisions by failing to timely comply with the Act’s 

requirements. (Figueroa, supra, 84 Cal.App.5th at pp. 713, 714; 

see also Williams, supra, 5 Cal.App.5th at pp. 784–785.) 

Allowing buyers to recover full restitution, as defined in the 

statute, incentivizes manufacturers to comply with their 

obligations under the Act.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

30

Neither FCA nor the Court of Appeal provide any basis for 

their opinion that no rational owner would return their defective 

vehicle or that returning a defective vehicle would become the 

rare exception rather than the rule, and we question these

assumptions. Niedermeier made three separate requests to 

return the vehicle after multiple attempts to repair it over four 

years failed. It was not until FCA repeatedly declined to buy 

back the vehicle that Niedermeier gave up, purchased a new 

vehicle, and traded in the defective one. Even if a buyer is 

entitled to recover the full statutory restitution remedy in an 

action under section 1794, it is reasonable to believe that, like 

Niedermeier, buyers will continue to attempt to return defective 

vehicles before filing suit in order to avoid the time and trouble 

of selling or trading them in to a third party and resorting to 

litigation. The concurrence disagrees, maintaining that “[i]f 

trade-in or resale always yielded the potential for double 

recovery, one would expect a good number of consumers to go 

that route.” (Conc. opn. of Kruger, J., post, at p. 15.) But

manufacturers can rather easily avoid a result in which buyers 

resell defective cars simply by promptly complying with their 

obligations under the Act. (See Figueroa, supra, 84 Cal.App.5th 

at p. 713 [any windfall to the plaintiff was the direct result of 

FCA’s willful violation of the Act, and “[h]ad FCA fulfilled its 

duty under the [Act] to promptly replace or repurchase the 

truck, there would be no such windfall”]; see also Williams, 

supra, 88 Cal.App.5th at p. 714.)

FCA and the Court of Appeal also overlook the fact that a 

buyer’s decision to trade in or sell a vehicle is made in real time.

It would be quite risky for a buyer to choose to trade in or sell a 

defective vehicle to a third party before a manufacturer is able 

to comply with its statutory obligation to promptly repurchase 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

31

or replace the vehicle. The Act requires a buyer to deliver the 

defective vehicle to the manufacturer’s service and repair 

facility for the purpose of allowing the manufacturer a 

reasonable number of repair attempts. (§ 1793.2, subds. (c), (d); 

§ 1793.22, subd. (b); Kirzhner, supra, 9 Cal.5th at pp. 969, 971, 

986; Krotin, supra, 38 Cal.App.4th at pp. 302–303 [“the Act does 

not require consumers to take any affirmative steps to secure 

relief for the failure of a manufacturer to service or repair a 

vehicle to conform to applicable warranties — other than, of 

course, permitting the manufacturer a reasonable opportunity 

to repair the vehicle”]; Martinez, supra, 193 Cal.App.4th at 

pp. 191, 193.) Once the manufacturer is unable to repair the 

vehicle after a reasonable number of attempts, the 

manufacturer’s obligation to promptly provide restitution to the 

buyer arises. (§ 1793.2, subd. (d)(2); see also § 1794, subd. (b); 

see also Kirzhner, supra, 9 Cal.5th at p. 986.) Thus, it is only 

where the manufacturer fails to “promptly” provide restitution 

that a buyer would be able to trade in or sell a defective vehicle 

while also obtaining restitution from the manufacturer. If a 

buyer were to trade in or sell the vehicle before affording the 

manufacturer a reasonable number of opportunities to repair 

the vehicle, the buyer would not be able to obtain restitution or 

replacement remedies under the Act.8 (Kirzhner, supra, at 

8 We are not faced with circumstances in which a 

manufacturer has violated the Act but has a good faith and 

reasonable belief that a statutory obligation to pay restitution 

does not exist. Neither are we faced with a situation in which a 

buyer sells or trades in a vehicle before a manufacturer has the 

opportunity to comply with its obligation to promptly pay 

restitution. We do not decide today how such facts might affect 

the damages calculation; in this case, a jury found FCA not only 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

32

pp. 969, 971, 986; Krotin, supra, at pp. 302–303.) In this way, 

the Act itself curbs the concern that buyers will not return 

defective vehicles to the manufacturer for service and labeling.

FCA also argues the labeling and notification provisions,

“contemplate[] that, in exchange [for the full restitution 

remedy], the buyer will return the car to the manufacturer. This 

is made clear by Section 1793.23, which states in four different 

places that a defective vehicle is ‘accepted for restitution’ by the 

manufacturer.” FCA instructs us to assume, however, that 

consumers who cannot return a vehicle are still entitled to 

statutory restitution under section 1793.2. Indeed, FCA does 

not challenge Martinez’s holding that a plaintiff does not need 

to “possess or own the vehicle at issue in order to obtain 

replacement or restitution pursuant to the Act.” (Martinez, 

supra, 193 Cal.App.4th at p. 192.) Yet FCA reasons that in light 

of section 1793.23, in situations where a consumer cannot return

the vehicle, any value the consumer received from a trade-in or 

sale of the vehicle must nonetheless reduce the consumer’s

restitution award.

The “accepted for restitution” language in the Act, 

however, is only present in the labeling and notification 

provisions. (§ 1793.23, subds. (c)–(e).) It is notably absent from 

both sections 1794 and 1793.2, subdivision (d)(2). The labeling 

and notification provisions identify what a manufacturer must 

do to comply with the Act when it reacquires a vehicle. The 

provisions impose no limits on the remedies identified, and 

concededly applicable, in sections 1794 and 1793.2, 

subdivision (d)(2). Accordingly, this language does not require 

failed to promptly pay Niedermeier restitution, but FCA also 

willfully failed to comply with the Act. 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

33

a buyer’s restitution award to be reduced if the buyer does not 

return their defective vehicle to the manufacturer.

Ultimately, the labeling and notification provisions “are 

inapplicable in the situation where, as here, the manufacturer 

elects not to reacquire the vehicle and the buyer is forced to seek 

legal intervention.” (Williams, supra, 88 Cal.App.5th at p. 783.) 

These provisions do not require a buyer to return a defective 

vehicle in order to receive restitution under the Act; they merely 

place a duty on the manufacturer or dealer to notify subsequent 

transferees that the car was reacquired due to a nonconformity.9 

Once restitution is available to a plaintiff as a remedy, which 

FCA concedes is the case here, the measure of restitution is as

described in section 1793.2, subdivision (d)(2), with no

reductions other than those expressly stated in that subdivision.

D. Additional Public Policy Considerations

Support Not Reducing a Restitution Award by a 

Trade-in Credit or Sale Proceeds

There are a number of additional public policy reasons to 

conclude the statutory restitution remedy does not permit a 

reduction for a trade-in credit or sale proceeds.

9 The concurring opinion observes that the statutory 

restitution remedy seems to be built on the premise that a buyer 

returns the defective vehicle, the manufacturer accepts it, and 

the manufacturer offers the buyer their choice of a refund or 

replacement vehicle. (See conc. opn. of Kruger, J., post, at p. 9.)

But as FCA acknowledges, the question of whether Martinez 

was correctly decided is not before us, so we assume a buyer is 

not required to return the defective vehicle to a manufacturer to 

obtain restitution. 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

34

First, the Court of Appeal’s (and FCA’s) interpretation 

would incentivize manufacturers to drag out the process of 

offering restitution in hopes of paying reduced damages. 

Specifically, manufacturers would be encouraged to wait for 

consumers to become fed up with delays and give up and sell or 

trade in their defective (if not dangerous) vehicles, at which 

point the manufacturers could request that the consumers’ 

damages be reduced accordingly. If the statutory restitution 

remedy can be reduced by a trade-in credit or sale proceeds, 

manufacturers will be relieved of the obligation to pay the full 

restitution amount required by statute. Such a rule would 

encourage “the manufacturer’s unforthright approach and 

stonewalling of fundamental warranty problems.” (Krotin, 

supra, 38 Cal.App.4th at p. 303.)10 

Similarly, allowing a reduction to the statutory restitution 

remedy in actions pursuant to section 1794 would reward 

manufacturers for delaying refunds when the manufacturer 

“ha[s] complete control over the length of that delay, and an 

affirmative statutory duty to replace or refund promptly.” 

(Jiagbogu, supra, 118 Cal.App.4th at p. 1244; Williams, supra, 

10 Niedermeier and amicus Consumers for Auto Reliability 

and Safety argue that trade-in credits tend to be artificially 

inflated and are not reflective of the actual value of the vehicle. 

The prospect that a buyer would trade in a defective vehicle for 

an artificially inflated value would provide an even greater 

incentive for manufacturers to delay in repurchasing defective 

vehicles. However, Niedermeier’s counsel advised the court as 

to the Yukon’s purchase price; no evidence was introduced at 

trial as to the Yukon’s purchase price or whether the trade-in 

amount reflected the vehicle’s actual value. Thus, the court does 

not credit the assertion that the trade-in amount Niedermeier 

received was artificially inflated.
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

35

88 Cal.App.5th at p. 785 [manufacturer’s interpretation “would, 

in essence, reward manufacturer for declining or not offering to 

reacquire the vehicle”].) If a manufacturer fails to comply with 

the Act, a buyer may spend months or years pursuing futile 

repair attempts and years in litigation pursuing remedies. Any 

delay in paying restitution increases the likelihood that a buyer 

will be forced to trade in or resell the defective vehicle or 

relinquish the vehicle to a lienholder, relieving manufacturers 

of the obligation to label the vehicles lemons.

FCA contends that reducing the restitution remedy by the 

amount of a trade-in credit or sale will not encourage delay.

According to FCA, there is no economic difference from the 

manufacturer’s perspective between a scenario in which a buyer 

returns the car to the manufacturer and the manufacturer is 

liable for the purchase price of the vehicle, and a scenario in 

which a buyer sells or trades in a car to a third party and the 

manufacturer pays the buyer reduced damages. This argument 

is not well taken. FCA ignores that manufacturers 

independently benefit from delays that cause buyers to trade in 

or sell defective vehicles because manufacturers are relieved of 

the burden of complying with the Act’s labeling and notification 

requirements. Not only that, incidental damages cease accruing 

when buyers trade in or sell defective vehicles, further reducing 

the amount manufacturers have to pay in damages. FCA’s 

interpretation would result in significant incentives for delay.

Encouraging manufacturer delays would undermine the prompt 

restitution obligation imposed on manufacturers under the Act 

and contravene the Act’s pro-consumer purpose. 

“Interpretations that would significantly vitiate a 

manufacturer’s incentive to comply with the Act should be 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

36

avoided.” (Jiagbogu, supra, 118 Cal.App.4th at p. 1244; see also 

Kwan, supra, 23 Cal.App.4th at p. 184.)

The Court of Appeal was unpersuaded by the argument 

that a buyer trading in a defective vehicle bears all or part of the 

cost of the manufacturer’s delay, and observed that Niedermeier 

“can recover the full purchase price through a combination of 

the trade-in and restitution from defendant.” (Niedermeier, 

supra, 56 Cal.App.5th at p. 1073.) The Court of Appeal fails to 

account for the fact that buyers are always forced to bear a 

burden when a manufacturer delays in promptly reimbursing or 

exchanging a vehicle. These burdens may include considerable 

stress and time diverted from work, school, family, or leisure 

activities while attempting to repair or return a defective 

vehicle. At a minimum, a manufacturer’s failure to promptly 

reimburse a buyer imposes a financial burden on the buyer, who

must continue to shoulder payments for a defective vehicle 

and — if the buyer can afford it — pay out of pocket for a new 

vehicle. This, by itself, is inconsistent with the pro-consumer 

purpose of the Act. If buyers cannot afford to buy a replacement 

vehicle, they may have no choice but to continue driving a

defective or dangerous vehicle. Forcing consumers to engage in 

self-help in order to avoid the ongoing impact of a 

manufacturer’s delay is not what the Legislature intended.

The Court of Appeal’s interpretation of “actual price paid 

or payable” as not including trade-in or sale amounts could also

compel buyers to choose replacement over restitution. Faced 

with the choice of a manufacturer delaying payment of

restitution on the one hand, and a replacement option that 

requires a manufacturer to provide an alternate vehicle that is

likely already available on the other hand, buyers may 

ultimately select replacement. This, however, would be in direct 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

37

contravention of the Act’s explicit directive that “the buyer shall 

be free to elect restitution in lieu of replacement, and in no event 

shall the buyer be required by the manufacturer to accept a 

replacement vehicle.” (§ 1793.2, subd. (d)(2).)

FCA argues that manufacturers have “ample incentive” to 

promptly comply with the Act because they are already subject 

to attorney fee awards and civil penalties for willful violations

of the Act. The facts of this case prove otherwise. Niedermeier 

took the vehicle in for repair a total of 16 times over four years, 

rendering the vehicle out of commission for 75 days without it 

ever being repaired. Niedermeier made three separate demands 

for restitution — which she was not required to do under the Act 

(see Krotin, supra, 38 Cal.App.4th at pp. 302–303) — but FCA 

declined to repurchase the vehicle. Attorney fees and penalties 

were a real possibility in this case, and in fact were imposed on 

FCA for willfully violating the Act, but FCA still failed to 

promptly comply with the Act. As Niedermeier points out, “the 

most defective vehicles . . . are the vehicles most likely to be 

traded-in for a safe vehicle, yet those are the ones by which a 

manufacturer would reap the best benefit for its delay.” To the 

extent FCA contends that manufacturers already have 

sufficient incentives to comply with the Act or that buyers will 

receive windfalls if the statutory restitution remedy is not 

reduced by the trade-in credit or sale proceeds, these are 

competing policy concerns that are more appropriately directed 

to the Legislature. (See Brennon B. v. Superior Court (2022) 

13 Cal.5th 662, 696 [“The proper balancing of these competing 

priorities is ultimately and unquestionably ‘a policy issue that 

lies within the province of the legislative, rather than the 

judicial, branch’ ”].)
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

38

For these reasons, we decline to adopt a rule that reduces 

a buyer’s statutory restitution award by a trade-in credit or sale 

proceeds at least where, as here, a consumer has been forced to 

trade in or sell the defective vehicle due to the manufacturer’s 

failure to comply with the Act. Once restitution is available to 

a plaintiff as a remedy, the measure of restitution is as described 

in section 1793.2, subdivision (d)(2), with no reductions other 

than those expressly stated in that subdivision. Our 

interpretation is supported by the plain language of the Act, the 

legislative history, and the consumer-protective purpose of the 

Act. It is also “more consistent with the rule that courts should 

liberally construe remedial statutes in favor of their protective 

purpose . . . .” (Pineda, supra, 51 Cal.4th at p. 532.) 

The concurrence maintains a rule that categorically 

entitles consumers to obtain the full statutory restitution 

remedy without a reduction for trade-in or sale proceeds “would 

raise significant questions of fairness.” (Conc. opn. of Kruger, 

J., post, at p. 15.)11 To be sure, we do not mean to suggest that 

11 The concurrence also argues that such a rule “would mean 

that plaintiffs who buy luxury vehicles could wind up turning a 

substantial profit if those vehicles later prove defective, while 

plaintiffs who buy economy cars probably could not — for 

reasons that have nothing to do with the extent of their actual 

losses or the extent of the manufacturer’s wrongdoing.” (Conc. 

opn. of Kruger, J., post, at p. 15.) Consumers who purchase 

more expensive vehicles pay more as a matter of course for their 

vehicles and thus are more likely to obtain more when they are 

traded in or resold. The court does not assume, based on our 

holding, that consumers will start buying vehicles with the 

expectation that they will be defective and that manufacturers 

will refuse to comply with the Act, so that they can sell or trade 
NIEDERMEIER v. FCA US LLC

Opinion of the Court by Evans, J.

39

a consumer has the right to sell or trade in a vehicle at any time. 

Our holding is narrower and applies to the measure of 

restitution described in section 1793.2, subdivision (d)(2), in 

actions brought pursuant to section 1794. A consumer still has

the obligation to permit manufacturers a reasonable 

opportunity to repair the vehicle. Manufacturers must also 

comply with their obligations under the Act, including the 

obligation to promptly repurchase or replace vehicles and the 

obligation to label vehicles lemons. Prompt compliance with the 

Act will ensure manufacturers meet these obligations and that 

defective vehicles end up in their possession for labeling. 

III. DISPOSITION

As we conclude that neither a trade-in credit nor sale 

proceeds reduce the statutory restitution remedy, at least where

a consumer has been forced to trade in or sell a defective vehicle 

due to the manufacturer’s failure to comply with the Act, we do 

not reach the issue of whether the amount a buyer recovers 

should be assessed before or after calculating penalties. We 

reverse the judgment of the Court of Appeal.

EVANS, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

in the vehicles and bring actions under the Act hoping to realize 

a profit. 
1

NIEDERMEIER v. FCA US LLC

S266034

Concurring Opinion by Justice Kruger

Car manufacturer FCA US LLC willfully violated its 

duties under California’s lemon law when it repeatedly refused 

to accept the return of Lisa Niedermeier’s defective Jeep for 

replacement or a refund of the $40,000 she paid for it. 

Niedermeier eventually gave up on FCA and went to an 

unaffiliated dealership, where she traded in the defective Jeep 

for a working vehicle. Niedermeier sued FCA for her damages, 

including a full $40,000 refund. FCA now argues that because 

Niedermeier did not return the Jeep but instead traded it in for 

another car, FCA is entitled to subtract from her damages the 

likely inflated $19,000 trade-in credit she received for the Jeep. 

Never mind that the reason Niedermeier did not return the 

defective Jeep to FCA is that FCA had refused to accept it and 

promptly pay restitution, in willful violation of California’s 

lemon law.

FCA’s argument is all but self-refuting, and the court 

rightly rejects it. The majority opinion holds that under 

California’s lemon law, a car buyer is entitled to a full refund for 

a defective vehicle even if the buyer has in the meantime traded 

it in or sold it to a third party — with the qualification that this 

rule applies “at least” where, as in this case, the buyer “has been 

forced” to trade in or sell the defective vehicle because of “the 

manufacturer’s failure to comply with the [Song-Beverly 

Consumer Warranty] Act.” (Maj. opn., ante, at p. 3.) I write 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

2

separately to explain how I understand this holding, including 

both the rule and the suggestion that the rule may have limits. 

I also write to explain why, in my view, such limits are 

important to a full understanding of the lemon law in light of its 

overarching consumer-protection purposes.

As I read the law, if a car proves defective, the buyer 

ordinarily must return the car to the manufacturer in order to 

receive a replacement vehicle or refund. The car manufacturer 

may then resell the returned car, but first must disclose to 

prospective buyers that the car has been designated a lemon. 

This usual order of operations ensures that original buyers are 

appropriately compensated when their cars cannot be made to 

conform to their warranties within a reasonable time, while also 

protecting prospective buyers from inadvertently purchasing 

vehicles that have a history of serious defects. But all bets are 

necessarily off if the manufacturer willfully thwarts the buyer’s 

efforts to return the vehicle for a replacement or refund, which 

is what happened here. If the car buyer then engages in 

reasonable self-help by selling the car or trading it in for another 

vehicle, the manufacturer is not entitled to pocket the proceeds 

and thereby profit from its willful misconduct.

I.

California’s lemon law, formally known as the SongBeverly Consumer Warranty Act (the Act), Civil Code section 

1790 et seq., is a consumer protection law aimed specifically at 

new car buyers, who often depend on those cars to get to work, 

to take their children to school, and to handle myriad other daily 

necessities of life. Among other things, the law places 

affirmative obligations on car manufacturers to back up the 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

3

warranty promises made in connection with the sale of their 

products. 

The dispute in this case centers on the meaning of various 

provisions of the lemon law addressing what happens when a 

car manufacturer is unable to make a car conform to its 

warranty after a reasonable number of attempts. One set of 

provisions concerns a buyer’s remedies. The first of these 

provisions, Civil Code section 1793.2, subdivision (d)(2) (section 

1793.2(d)(2)), provides that if the manufacturer has had a 

reasonable amount of time to repair the vehicle and still cannot 

get it done, the manufacturer has an obligation to “promptly” 

replace the defective vehicle or “make restitution” by refunding 

the buyer. (See Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 

Cal.5th 966, 971.) Appellate case law makes clear that this 

replace-or-refund obligation exists whether or not the buyer 

asks; it is the manufacturer’s “affirmative duty to replace a 

vehicle or make restitution to the buyer if the manufacturer is 

unable to repair the new vehicle after a reasonable number of 

repair attempts.” (Krotin v. Porsche Cars North America, Inc.

(1995) 38 Cal.App.4th 294, 303.)

This process is meant to work without court involvement. 

But if a manufacturer does not comply with its obligation to 

promptly repurchase or replace the defective vehicle, the buyer 

may turn to a second provision of the law, Civil Code section 

1794 (section 1794), which creates “an action for the recovery of 

damages and other legal and equitable relief.” (§ 1794, subd. 

(a).) A successful claimant in a suit under section 1794 is 

entitled to reasonable attorney’s fees and costs (id., subds. (d), 

(e)(1)), as well as damages whose measure “shall include the 

rights of replacement or reimbursement as set forth in 

subdivision (d) of Section 1793.2, and” provisions of the 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

4

California Uniform Commercial Code governing the damages 

ordinarily available to a buyer of nonconforming commercial 

goods. (Id., subd. (b).) 

The law also provides for penalties to punish and deter 

willful violations. Appellate case law treats the manufacturer’s 

violation as not willful “if [its] failure to replace or refund was

the result of a good faith and reasonable belief the facts 

imposing the statutory obligation were not present. This might 

be the case, for example, if the manufacturer reasonably 

believed the product did conform to the warranty, or a 

reasonable number of repair attempts had not been made, or the 

buyer desired further repair rather than replacement or 

refund.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 

23 Cal.App.4th 174, 185.) If, however, a manufacturer violates 

the statute without such a good faith and reasonable belief, the 

judgment may include a civil penalty of up to two times the 

amount of actual damages. (§ 1794, subd. (c).) 

That is the set of provisions governing the remedies 

available to the buyer of a defective car, and which forms the 

centerpiece of the dispute before us. There is also, however, a 

second set of provisions relevant to our inquiry, which are the 

provisions governing what’s supposed to happen to the car after 

it is found to be defective. A car that has once been labeled a 

lemon because it could not be made to conform to its warranty 

within a reasonable time is not necessarily worthless, and it 

may be resold. But to prevent reselling defective or oncedefective vehicles “without notice to the subsequent purchaser” 

(Civ. Code, § 1793.23, subd. (a)(2)), the law imposes various 

labeling and notification requirements on the manufacturer 

that has “reacquired” a vehicle that is “required by law to be 

replaced” or “accepted for restitution” under section 1793.2(d)(2) 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

5

or under comparable laws in other jurisdictions (Civ. Code, 

§ 1793.23, subd. (c); see also id., subds. (d)–(f)).

Specifically, before the manufacturer resells, leases, or 

transfers the car, the manufacturer must instruct the 

Department of Motor Vehicles to “inscribe the ownership 

certificate with the notation ‘Lemon Law Buyback,’ ” and “affix 

a decal to the vehicle” indicating that it has been designated a 

“ ‘Lemon Law Buyback.’ ” (Civ. Code, § 1793.23, subd. (c); Veh. 

Code, § 11713.12, subd. (a).) The manufacturer must also 

provide written notice to the transferee of the nonconformities 

reported by the original buyer or lessee and of any repairs 

attempted to correct the nonconformity. (Civ. Code, §§ 1793.23, 

subd. (d), 1793.24, subd. (a)(3)–(4).) The Act likewise prohibits 

the sale, lease, or transfer of a vehicle “transferred by a buyer or 

lessee to a manufacturer pursuant to [section 1793.2(d)(2)] or a 

similar statute of any other state” absent disclosure of the 

vehicle’s nonconformities, correction of those nonconformities, 

and a one-year manufacturer warranty that the vehicle is free 

of the nonconformities. (Id., § 1793.22, subd. (f)(1); see generally 

Niedermeier v. FCA US LLC (2020) 56 Cal.App.5th 1052, 1065–

1066.)

II.

The threshold question in this case is whether the plain 

language of the statute forecloses FCA’s argument for 

calculating Niedermeier’s damages by subtracting the trade-in 

value of the Jeep from the original purchase price. The plainlanguage argument goes something like this: Section 1794 says 

that a car manufacturer that violates its lemon law duties must 

pay damages including “replacement or reimbursement as set 

forth in subdivision (d) of Section 1793.2.” (§ 1794, subd. (b).) 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

6

And the restitutionary remedies in section 1793.2(d)(2) specify 

precisely what this means. A manufacturer required to 

reimburse the buyer for a defective car must pay the actual price 

of the vehicle but may make reductions for nonmanufacturer 

items installed by a dealer or the buyer, and the amount directly 

attributable to the vehicle’s use by the buyer before first 

delivering it for correction of the warranty nonconformity. 

(§ 1793.2(d)(2)(B), (C).) But those provisions do not say 

anything about reducing the reimbursement amount by the 

trade-in or resale value a buyer receives for the defective vehicle. 

By negative implication, then, a manufacturer may not reduce 

the reimbursement amount by whatever proceeds the buyer 

may have received through selling or trading in the car to a third 

party. 

The majority walks through this argument (maj. opn., 

ante, at pp. 10–23), but it also, in the end, acknowledges that a 

“potential ambiguity” in the statutory language makes it 

appropriate to consider legislative history and the purposes and 

policies underlying the lemon law in arriving at the conclusions 

the court reaches today (id. at p. 24). I emphatically agree the 

statute is ambiguous.

Looking at sections 1793.2(d)(2) and 1794 in isolation, the 

idea that the plain language of the provisions answers the 

question has some superficial appeal. The difficulty with the 

plain-language argument, however, is that it would seem to 

prove too much. The restitutionary remedy in section 

1793.2(d)(2) is not specific to cases like this one, in which a car 

manufacturer has willfully violated its duties to make a prompt 

offer of replacement or refund. Indeed, section 1793.2(d)(2) does 

not address violations of those duties at all; it is what tells car 

manufacturers what they must do in the first instance to avoid
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

7

violating their duties. By suggesting that section 1793.2(d)(2) 

categorically entitles a car buyer to trade in or sell a defective 

vehicle to a third party, retain the proceeds, and still demand a 

full refund of the purchase price (or even a brand-new 

replacement vehicle from the manufacturer), the plain-language 

argument would seem to provide an avenue for double recovery 

in every lemon law case, regardless of whether the 

manufacturer has done anything wrong. This is not the only 

way — or even a particularly likely way — to understand the 

text of the relevant remedial provisions.1

One reason is the one the majority expressly identifies: 

Allowing across-the-board double recovery for lemon law 

plaintiffs arguably overshoots what the Legislature was aiming 

at when it provided for damages to include a right of 

“restitution,” even if that right is statutory rather than based in 

common law. (Maj. opn., ante, at p. 24; see Alder v. Drudis

1 The court in Martinez v. Kia Motors America, Inc. (2011) 

193 Cal.App.4th 187, 194, did appear to adopt this reading of 

the language of the statute. But the actual holding of the case 

did not depend on it. In Martinez, the buyer abandoned her 

nonfunctioning car at the dealership after the dealer refused to 

provide warranty coverage to repair it. The car was ultimately 

repossessed. (Id. at p. 192.) There was no trade-in or resale to 

contend with, no dispute about the proper amount of restitution, 

and no question about the calculation of damages. The Court of 

Appeal determined that nothing in the lemon law required 

Martinez to possess the vehicle before pursuing damages for the 

violations she asserted. (Id. at pp. 193–194.) Whether and to 

what extent the Martinez opinion correctly reasoned through 

the issue before it is beyond the scope of our inquiry in this case. 

It suffices to observe that the actual holding of Martinez is not 

inconsistent with a more nuanced understanding of the statute 

that acknowledges its ambiguities.
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

8

(1947) 30 Cal.2d 372, 384 [“[t]he purpose of restitution as a 

remedy for [contract] breach is the restoration of the status quo 

ante as far as is practicable”].) 

But the more fundamental reason, as I see it, relates to 

the relationship between section 1793.2(d)(2) and related 

provisions governing what is supposed to happen to a car after 

it has proved defective. If the statute does not specify that resale 

or trade-in values are to be excluded from the “restitution” for 

which section 1793.2(d)(2) provides, that may simply be because 

the statute does not anticipate the scenario in which a car buyer 

seeks a full refund or replacement vehicle despite having sold 

the defective car to a third party.

Again, recall that section 1793.2(d)(2) is not written as a 

remedy for manufacturer wrongdoing; it is, rather, the provision 

that tells the manufacturer what it must do when a defective car 

doesn’t live up to the warranty. The assumption running 

through the statute appears to be that, in the ordinary course, 

if it appears that a car cannot be made to conform to the 

warranty within a reasonable number of repair attempts, the 

manufacturer will offer replacement or restitution and will 

reacquire the car in exchange. 

This assumption is most clearly evident in the Act’s 

labeling and notification provisions governing “Lemon Law 

Buyback” (Civ. Code, § 1793.23), which impose on 

manufacturers multiple requirements designed to disclose a 

defective vehicle’s past before the vehicle can be sold to another 

buyer. These provisions expressly refer to cars “accepted for 

restitution” under section 1793.2(d)(2) — suggesting that the 

cars will, in fact, be returned to the manufacturer in exchange 

for the restitution described in that section. (Civ. Code, 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

9

§ 1793.23, subds. (c)–(e).) And, perhaps more fundamentally, 

the labeling and notification provisions can serve their essential 

purpose of protecting downstream consumers in the used-car 

market only if the manufacturers have the chance to comply, 

which means the cars must somehow find their way back into 

the manufacturers’ hands. 

None of this is, or should be, especially controversial. 

Indeed, Niedermeier’s counsel acknowledged at oral argument 

that the idea that a car buyer will return the defective vehicle 

in exchange for replacement or full refund is “embedded” in the 

statutory framework that describes what is supposed to 

transpire when a manufacturer cannot conform a vehicle to its 

warranty, even if the lemon law may not say so in explicit terms. 

The restitutionary remedy in section 1793.2(d)(2) appears built 

on this premise: The buyer returns the defective vehicle, the 

manufacturer accepts it and in return offers the buyer her choice 

of a refund or a replacement vehicle.2

2 Unsurprisingly, many other states’ lemon laws make the 

return of the car an explicit requirement. (E.g., N.J. Stat. Ann. 

§ 56:12-32(a)(1) [“the manufacturer . . . shall accept return of the 

motor vehicle from the consumer” and “(1) . . . provide the 

consumer with a full refund of the purchase price of the original 

motor vehicle” (italics added)]; N.Y. Gen. Bus. Law § 198-a(c)(1)

[“the manufacturer, at the option of the consumer, shall replace 

the motor vehicle with a comparable motor vehicle, or accept 

return of the vehicle from the consumer and refund to the 

consumer the full purchase price” (italics added)]; R.I. Gen. 

Laws § 31-5.2-3(a)(1) [“the manufacturer shall accept return of 

the vehicle from the consumer or lessee and, at the consumer’s 

or lessee’s option, refund the full contract price or lease price of 

the vehicle including all credits and allowances for any trade-in 

vehicle” (italics added)]; Wn. Rev. Code Ann. § 19.118.041(1) 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

10

The problem we confront here raises a set of issues as to 

which the statute provides no express instruction. What 

happens if the buyer doesn’t return the vehicle — because, as 

occurred here, the manufacturer refuses to take the car back —

and the buyer then trades it in or sells it to a third party? Is the 

buyer entitled to a full refund or replacement? The statute 

offers no clear answers. 

To navigate this hazy area of the lemon law, we can look, 

as the majority says, to the legislative history and, ultimately, 

to the law’s purposes as they relate to the issue before us. (Maj. 

opn., ante, at p. 24.) As I understand the majority opinion, the 

dispositive consideration is an essentially equitable one that 

focuses on the circumstances of this case and others like it. If 

Niedermeier did not return the defective Jeep, it was not for lack 

of trying. It was, rather, because FCA willfully refused to accept 

the return of the Jeep and promptly pay restitution, as it was 

statutorily required to do. If the result was that Niedermeier 

ultimately sold the Jeep in a manner that undercut the labeling 

and notification requirements, the fault belongs with FCA, 

which effectively forced Niedermeier into that position. FCA 

should not then be permitted to profit from its intransigence by 

subtracting the likely inflated trade-in credit Niedermeier 

received from the total amount it would otherwise owe 

Niedermeier in damages. (Maj. opn., ante, at pp. 30–31, 35–38.) 

[“the manufacturer . . . shall, at the option of the consumer, 

replace or repurchase the new motor vehicle” (italics added)]; see 

also Martinez v. Kia Motors America, Inc., supra, 193 

Cal.App.4th at pp. 196–197 [discussing additional jurisdictions 

that require return of a defective vehicle for a lemon law 

refund].)
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

11

This is not a particularly novel concept, nor one unique to 

the lemon law. It is, rather, essentially a statute-specific 

application of the well-established equitable principle that “[n]o 

one can take advantage of his own wrong.” (Civ. Code, § 3517.) 

The problem raised by the calculation of the “restitution” owed 

to Niedermeier in this case, in other words, evokes the familiar 

doctrine of unjust enrichment. The doctrine is “based on the 

idea that ‘one person should not be permitted unjustly to enrich 

himself at the expense of another, but should be required to 

make restitution of or for property or benefits received, retained, 

or appropriated, where it is just and equitable that such 

restitution be made.’ ” (County of San Bernardino v. Walsh

(2007) 158 Cal.App.4th 533, 542.) “Typically, the defendant’s 

benefit and the plaintiff’s loss are the same, and restitution 

requires the defendant to restore the plaintiff to his or her 

original position. [Citations.] The principle of unjust 

enrichment, however, is broader than mere ‘restoration’ of what 

the plaintiff lost.” (Ibid.) “The emphasis is on the wrongdoer’s 

enrichment, not the victim’s loss. In particular, a person acting 

in conscious disregard of the rights of another should be 

required to disgorge all profit because disgorgement both 

benefits the injured parties and deters the perpetrator from 

committing the same unlawful actions again.” (Ibid.; see Ward 

v. Taggart (1959) 51 Cal.2d 736, 741–742; Rest.3d Restitution 

and Unjust Enrichment, § 1.)

Consideration of unjust enrichment principles offers an 

explanation for the conclusion that a manufacturer obligated to 

pay lemon law damages may not withhold the amounts it would 

otherwise save through its willful violation of section 

1793.2(d)(2) — which is to say, its “conscious disregard” of the 

buyer’s statutory rights and of its own statutory duties. (County 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

12

of San Bernardino v. Walsh, supra, 158 Cal.App.4th at p. 542; 

see Rest.3d Restitution and Unjust Enrichment, supra, § 51, 

subd. (4) [“unjust enrichment of a conscious wrongdoer . . . is the 

net profit attributable to the underlying wrong”]; American 

Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 

Cal.App.4th 1451, 1487 [same].) Through its misconduct —

unjustly refusing to accept Niedermeier’s Jeep for restitution 

even after multiple repair efforts had failed to make the Jeep 

safe to drive — FCA effectively “forced” Niedermeier to trade in 

her Jeep for a working vehicle (maj. opn., ante, at pp. 3, 24, 39, 

40), and improperly retained the full restitution to which she

was entitled under section 1793.2(d)(2). Considered in light of 

unjust enrichment principles, the damages calculation 

prescribed by sections 1794 and 1793.2(d)(2) cannot be 

interpreted to reward FCA for this willful wrongdoing.

The trial court in this case invoked these principles when 

it rejected FCA’s request for a reduction in damages, expressly 

citing the tenet that “ ‘[n]o one can take advantage of his own 

wrong.’ ” And in other cases — also, as it happens, against 

FCA — courts have rejected similar requests for a reduction in 

damages with the observation that FCA should not “be 

compensated for its own willful violation of the law.” (Figueroa 

v. FCA US, LLC (2022) 84 Cal.App.5th 708, 713; see also 

Williams v. FCA US LLC (2023) 88 Cal.App.5th 765, 785 

[agreeing with Figueroa and declining to interpret the Act to 

“reward manufacturer” for its willful refusal to reacquire the 

vehicle].) Regardless of whether Niedermeier would otherwise 

be entitled to trade in her Jeep and pocket the proceeds, any 

reasonable understanding of the lemon law refutes the idea that 

FCA is entitled to profit from the course of action that led 

Niedermeier to that point in this case.
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

13

Niedermeier invoked the requirements of the Act by 

presenting her Jeep to FCA for repair; she also specifically asked 

FCA to accept the Jeep for restitution when many repairs over 

an extended period did not conform the Jeep to its warranty. 

Niedermeier, in other words, tried to return her vehicle to FCA, 

as the Act envisions, and would have been entitled to recover 

full restitution as described in section 1793.2(d)(2) if FCA had 

not willfully violated the Act and refused her return. Under 

these circumstances, Niedermeier’s “rights of replacement or 

reimbursement as set forth in subdivision (d) of Section 1793.2” 

(§ 1794, subd. (b)), for purposes of measuring her damages, 

include the full measure of restitution to which she would have 

been entitled absent FCA’s willful violation of its duties and 

conscious disregard of her rights. 

III.

The majority opinion suggests — but does not outright 

hold — that the result might be different in a different case. It 

says that the statute entitles a plaintiff car buyer to a full 

refund, without any deductions for trade-in or resale value, but 

adds this qualification: “at least where, as here, a consumer has 

been forced to trade in or sell a defective vehicle due to the 

manufacturer’s failure to comply with the Act.” (Maj. opn., ante, 

at p. 3.) The majority also makes clear that its holding is limited 

to circumstances like those presented in this case, and is leaving 

open whether the same rule would apply in a case involving a 

good-faith, reasonable mistake about whether the Act’s replaceor-refund provision applies to a particular vehicle. (Id. at 

pp. 32–33, fn. 8.) 

In my view, the result the court reaches today makes sense 

precisely because of the circumstances we confront. Although 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

14

the majority opinion leaves the limits of its holding for 

exploration in a future case, those limits are, in my view, 

important to a full understanding of the law.

There is no real question that a rule the majority applies 

today results in something of a windfall for the buyer, in that it 

leaves her better off than she was before she purchased the 

defective car. (Accord, maj. opn., ante, at p. 24.) In a case where 

she has been forced to sell the car because of the manufacturer’s 

willful failure to promptly refund or replace the car in 

accordance with the law, none of this matters. The reason the 

buyer in Niedermeier’s position is entitled to a full refund is not 

because all the money is necessary to make her whole; it is, 

rather, because it is necessary for the manufacturer to 

relinquish any claim on the money, in order to avoid rewarding 

misbehavior and to avoid encouraging a repeat of the same 

statute-defying stunt in future cases. (Cf., e.g., Center for 

Healthcare Education & Research, Inc. v. International 

Congress for Joint Reconstruction, Inc. (2020) 57 Cal.App.5th 

1108, 1129 [the “ ‘profit-based measure of unjust enrichment 

determines recoveries against conscious wrongdoers’ ” and 

“ ‘may potentially exceed any loss to the claimant’ ”].)3

3

I do not mean to overstate the degree to which our holding 

is likely to affect manufacturers’ existing incentives to do their 

best to comply with the law. As the majority points out, the 

prospect of hundreds of thousands of dollars in civil penalties 

and attorney fees was not enough to deter FCA’s misbehavior in 

this case. (See maj. opn., ante, at p. 38.) It is unclear to me, at 

least, that the prospect of being denied a $19,000 trade-in credit 

would have made a dispositive difference. But the point here is 

not how effective any individual component of the monetary 

remedy may be in deterring wrongdoing in any particular case. 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

15

But it is not hard to see why the Court of Appeal in this 

case was concerned about adopting a rule that would extend 

similar treatment across the board, to any buyer of a defective 

vehicle who might choose to trade in or sell the vehicle for profit 

rather than give it back to the manufacturer. Certainly some 

buyers might choose continued repairs rather than getting rid 

of the vehicle and “resorting to litigation.” (Maj. opn., ante, at 

p. 31; see also Kwan v. Mercedes-Benz of North America, Inc., 

supra, 23 Cal.App.4th at p. 186 [the plaintiff “repeatedly agreed 

to allow continued repair efforts rather than insisting on 

replacement or refund”].) But a rule that guaranteed full 

reimbursement on top of trade-in or resale profit would almost 

certainly alter some consumers’ calculations. If trade-in or 

resale always yielded the potential for double recovery, one 

would expect a good number of consumers to go that route. And 

as the Court of Appeal explained, the result would be to 

undermine the operation of the labeling and notification 

provisions, which depend on buyers returning their defective 

cars to manufacturers rather than selling their unlabeled 

lemons into the used-car market. (Niedermeier v. FCA US LLC, 

supra, 56 Cal.App.5th at pp. 1071–1072.) 

An across-the-board rule giving lemon law plaintiffs a 

categorical entitlement to full reimbursement (or else a new 

replacement car) plus the proceeds of resale or trade-in would 

also raise significant questions of fairness. A rule permitting 

this sort of double recovery in every case would mean that 

plaintiffs who buy luxury vehicles could wind up turning a 

substantial profit if those vehicles later prove defective, while 

The point is that such wrongdoing should not be rewarded in 

any measure. 
NIEDERMEIER v. FCA US LLC

Kruger, J., concurring

16

plaintiffs who buy economy cars probably could not — for 

reasons that have nothing to do with the extent of their actual 

losses or the extent of the manufacturer’s wrongdoing. It is 

unclear why the Legislature would have set up a remedial 

scheme that would authorize this additional recovery based 

solely on the price tag of the car, and thus, by extension, the 

financial means of the buyer.

By applying its holding “at least” in a case involving 

circumstances like those before us — that is, a willful failure to 

accept the return of a defective vehicle and make restitution —

the majority leaves open the possibility that the rule it 

announces may be limited to such cases, and does not 

necessarily apply across the board. As I see it, such a limit is 

not only sound, but important to a complete understanding of 

the statutory scheme. On that understanding, I concur in the 

majority’s reversal of the judgment of the Court of Appeal.

 KRUGER, J.

We Concur:

GROBAN, J.

JENKINS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Niedermeier v. FCA US LLC

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 56 Cal.App.5th 1052

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S266034

Date Filed: March 4, 2024

__________________________________________________________ 

Court: Superior

County: Los Angeles

Judge: Daniel S. Murphy

__________________________________________________________ 

Counsel:

Gibson, Dunn & Crutcher, Thomas H. Dupree, Jr., Matt Gregory, 

Shaun Mathur; Clark Hill and David L. Brandon for Defendant and 

Appellant.

Knight Law Group, Steve Mikhov, Roger Kirnos, Amy Morse; Hackler 

Daghighian Martino & Novak, Sepehr Daghighian, Erik K. Schmitt; 

Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Joseph V. 

Bui; Public Justice and Leslie A. Brueckner for Plaintiff and

Respondent. 

Consumer Law Practice and Daniel T. LeBel for Consumers for Auto 

Reliability and Safety as Amicus Curiae on behalf of Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion): 

Thomas H. Dupree, Jr.

Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue, NW 

Washington, DC 20036

(202) 955-8547

Cynthia E. Tobisman

Greines, Martin, Stein & Richland LLP

6420 Wilshire Boulevard, Suite 1100

Los Angeles, CA 90048

(310) 859-7811