Small Claims Court?

[Hardpan Curmudgeon SASS #8967]

Anyone have any experience and/or advice with Small Claims Court?  

 

As distasteful as I find it, I’m ready to pursue this…

 

About two years ago I took the ’02 Miata to the dealership to have an extra key made – something that only they could do.  Cheap, too, at a mere $250 or so…

 

Anyway, when I retrieved the car and new key, the service writer told me there was an unresolved recall on the vehicle. It seems that the PCM (Powertrain Control Module, or computer, or “brain”) needed to be replaced for emissions control reasons. This was a $1,200 part, but would be done, of course, at no cost to me.  I questioned the necessity, but was told it was mandated.  An appointment was made, as they had to order the part… evidently, PCM’s are not commonly stocked, as they are considered pretty much infallible.

 

On the designated time and date I took the car back in. The “repair” took several hours, as they also had to program it to recognize the keys and remote.

 

Okay… so a few days later, I get a CEL (“Check Engine Light”) and P0037  code, “Heater Circuit Low” in the rear oxygen sensor.  Damn!  That’s kinda early, mileage wise… but okay; I ordered a new generic unit, spliced the plug from the old sensor to the wires, and installed it.  Good to go.

 

A week or so later, I get another CEL, with the same code.  Damn!  Okay… drove it for a while, then finally ordered another, much more expensive, “plug ‘n’ play” unit.  Installed it… again good to go.  Then again ~ CEL and P0037.

 

By now I’m disgusted… decide to live with it; occasionally check for other codes and clear it – but after a varying period, it would return. Annoying, but I’ll live with it.

 

Finally, need a smog check for registration (2 yr cycle).  Cannot get a smog check with CEL.

 

Okay.  Many consultations on Miata forum sas there’s likely a bad fuse, bad ground or a short somewhere.  The Kid and I spent many hours tracing lines, testing the sensor in situ… nothing. Finally decide to bite the bullet and take it to the dealer.

 

Mechanics spend five hours working on the car, using all their sophisticated test equipment, computers, and even consulting their own national tech support resource.  National tech support advised them that “if problem occurred after PCM was replaced, PCM is bad – replace PCM.”

 

Okay. So replace the danged thing – the one y’all put in is evidently bad and has been since you installed it, causing me much angst and having to do other unnecessary repairs.

 

But!  Not so fast!  OH no… I’m told the “36 months/50,000 miles warranty on all parts and service” clearly printed on all their receipts just doesn’t apply in this case. Evidently on the back of the receipt, in extremely faint and fine print and buried in an entire page of text is some sort of disclaimer that recall repairs are not covered, despite the fact that it’s evidently been malfunctioning since installed.  Ironically, it performs as expected in all other aspects, but it has a fault that directs me (and the Miata tech staff) away from it's own fault, to address other, non-existent problems.  And by the way – the part is now $1,400!  Plus labor, plus key re-programming costs...

 

Multiple calls to their corporate customer services office and the dealership have been nearly fruitless – Corporate claims that their records indicate they never replaced the PCM; rather, they replaced a $100 EGR valve. (Fact – the PCM was indeed the part replaced).  They finally asked if I would accept a $300 credit; I said that was not acceptable. Corporate asked what I felt would be acceptable; I said that since the part has evidently been at fault since initially replaced, I should not be liable at all. However, I told them, in the interest of expedience, I would be willing to meet them halfway.  They were to discuss it and call me back.

 

A week later, no call; I called them again and they advised me they were not interested. I suggested my intent to pursue satisfaction in small claims court; they were not impressed. Goodbye.

 

With that, I’m ready. 

 

Anyone have any experience and/or advice with Small Claims Court?  

[Alpo]

My one experience with small claims court.

 

Allstate said the accident was partially my fault (they had a "witness"), and so they would only pay half the repair bill.

 

The day after the other driver was served with the summons to appear in small claims court, Allstate called and said, "We don't know WHO you spoke to before. It was completely our client's fault. We will pay 100% of the damages."

 

I told 'em 100% of the repair bill, plus filing fee, plus the 20 dollars to have a deputy deliver the summons.

 

It never went to court. I told them that when the check cleared I would drop the suit. It did, and I did.

[Ace_of_Hearts]

Who are you bringing suit against? The Manufacturer of the car, the part, the dealership, the mechanic?

(Good luck serving the Manufacturer)

Your chances of winning is a toss up, even if you have a good case.

If you win, you still have to collect. (Attach something they can't easily replace or do without)

 

I doubt it will go to court, as the Dealership and above are likely Corporations which will have to be represented by an attorney. With all the expenses involved.

(Most States require Corporations be represented by counsel even in small claims court)

Before you go to court, have a consultation with a good attorney and take their advice.

 

 

 

 

[The Original Lumpy Gritz]

 

 Is the component failure a known issue?

Receipt says what it says-You may well be SOL here.

OLG

[Loophole LaRue, SASS #51438]

Go get 'em, HP !!

 

Small Claims is a people's court; it is definitively plaintiff-oriented, and designed to remove the usual advantages enjoyed by big business with their big law firm representation.  Let them send lawyers; it puts them at a disadvantage in this forum.

 

In most jurisdictions, every product sold carries an implied warranty of merchantability - it must be fit to perform its designed function, and to pass in the trade without objection.  An expensive electronic component which admittedly failed to perform from day one is NOT merchantable.  Where the dealer represented that this part was required, and must be used, there is also an implied warranty of fitness for a particular purpose.  The dealer picked the part, representing that it would do the job.  It didn't, and its failure is a breach of that warranty.  Now for the good part - most states forbid the exclusion or limitation of these implied warranties in a consumer transaction - they can put all the attempted limitations they want on their receipts, but they are ineffective against an average joe like you.  The burden is on you to prove that the part was defective, but it sounds like you have a direct representation from the factory that it was, and verification in that the problems disappeared after the replacement part was replaced.

 

Make copies of all your paperwork; write out a succinct summary of what happened and what the dealer/rep said.  Be detailed.  Give it to the judge when you begin, and explain it fully.  Make it clear that replacement of the component was required by the dealer; that the failures and codes began after the dealer's replacement; that the factory told the dealer that the part was defective and had to be replaced; and that once that was done, the issues were resolved.  

 

Name the dealer and the manufacturer as defendants; if you name only the dealer, they may try to shift all blame to the manufacturer.  Most states allow service by certified mail ("long-arm service").  Alternatively, Mazda may have corporate or factory locations in your state, subjecting them to jurisdiction and service.  In most states, the Clerk's office will help Small Claim plaintiffs make service.

 

Someone suggested you speak with a lawyer first.  If you have one available, that's good advice IF he/she is a litigator.  You do not want advice from your local real estate conveyancer.  

 

You have nothing to lose but the filing fee; go give it a shot!

 

LL

[Tascosa, SASS# 24838]

All I can say is have all your PAPERWORK! Document the calls and their response and how long this has been going on. THEy will bring a lawyer that's on their payroll. Here in Texas Small Claims court go before a JP or a Magistrate. either of them are not necessarily lawyers. Good for you. But The more paperwork you present will strengthen your case. If you know a lawyer personally it would be a good idea to get some of his advice.

Good luck

[Hardpan Curmudgeon SASS #8967]

Thanks, All!  Excellent advice, and good reading, too!  Downright encouraging!  

 

A couple of quick notes:

 

Ace and Tascosa, in California, counsel is not allowed in small claims court.  It's "mano a mano" between the plaintiff and defendant.*

 

Loophole, thank you for your thoughts and advice - VERY much appreciated! I will have a copy at hand when I write up my documentation.  

 

One thing, though... I have not yet had the repairs done. I'm not looking for a refund; rather, I want them to make the repairs and be done with it.  The perfect solution would be to have them offer to complete the repair and avoid the court time altogether; however, being retired, these days I have much more time than money.

 

*Not sure who to have served - thinking perhaps the owner of the dealership, or the general manager.  Maybe the head of the service department?  

 

 

 

 

[The Original Lumpy Gritz]

Go after the GM. He is responsible for the day to day operations.

First-Have a sit down with this GM, and see if this issue can be 'fixed' at the table.

Then SCC if needed.

OLG

 

 

[Loophole LaRue, SASS #51438]

6 minutes ago, Hardpan Curmudgeon SASS #8967 said:

Thanks, All!  Excellent advice, and good reading, too!  Downright encouraging!  

 

A couple of quick notes:

 

Ace and Tascosa, in California, counsel is not allowed in small claims court.  It's "mano a mano" between the plaintiff and defendant.*

 

Loophole, thank you for your thoughts and advice - VERY much appreciated! I will have a copy at hand when I write up my documentation.  

 

One thing, though... I have not yet had the repairs done. I'm not looking for a refund; rather, I want them to make the repairs and be done with it.  The perfect solution would be to have them offer to complete the repair and avoid the court time altogether; however, being retired, these days I have much more time than money.

 

*Not sure who to have served - thinking perhaps the owner of the dealership, or the general manager.  Maybe the head of the service department?  

 

 

 

 

 

HP:

 

Before I start giving advice for a jurisdiction in which I am not admitted to practice, let me suggest that you start here:
 

http://www.courts.ca.gov/1008.htm

 

That should answer most of your questions, or send you to another source that will.

 

Buena suerte.

 

LL

[Chili Ron]

Howdy,

First email and or call Miata.net and see if they can help with the extent of the problem.

And maybe check with a larger newspaper like the Chicago trib, they have a guy who

tries to resolve automotive problems.

These newspaper based helplines are pretty good.

Any local Miata clubs? Sometimes they have back channels to dealers and parts.

Before the internet I got parts for my Honda from a Detroit dealer.

Best prices way better than local.

Sounds like you are a few parts away from having that Miata running.

or what the heck go to war....

Best

CR

 

[Yul Lose]

Back quite a few years ago when I was in the two way radio/mobile phone business I had to take a few customers to small claims court. Things like bounced checks, failure to return equipment, failure to pay for services, things like that. After losing the first couple of cases because I didn't have all of my paperwork or evidence together I learned that the more documentation that you can present the better. Many times the judge found in my favor because the defendant never showed up. If you do get a judgement collecting on it can be problematic as I found out.

[Ace_of_Hearts]

3 hours ago, Hardpan Curmudgeon SASS #8967 said:

Thanks, All!  Excellent advice, and good reading, too!  Downright encouraging!  

 

A couple of quick notes:

 

Ace and Tascosa, in California, counsel is not allowed in small claims court.  It's "mano a mano" between the plaintiff and defendant.*

 

Loophole, thank you for your thoughts and advice - VERY much appreciated! I will have a copy at hand when I write up my documentation.  

 

One thing, though... I have not yet had the repairs done. I'm not looking for a refund; rather, I want them to make the repairs and be done with it.  The perfect solution would be to have them offer to complete the repair and avoid the court time altogether; however, being retired, these days I have much more time than money.

 

*Not sure who to have served - thinking perhaps the owner of the dealership, or the general manager.  Maybe the head of the service department?  

If the owner or dealership is a Corporation you can look up the name under the Secretary of State in your State and it will have listed the person to whom service can be rendered.

 

 

 

 

 

1

 

[Badlands Bob #61228]

You can also pick a nice Saturday and go picket the dealership.  Get a really big carefully worded sign expressing your displeasure with the dealership.  Stand on the public sidewalk at their entrance and calmly talk to anyone who will listen.  They really hate when you do that.  The GM quickly does the math and figures if they lose one car sale, it is cheaper to make you happy and go away.  If you don't get any result, show up the next Saturday.  You're retired and the fresh air will do you good.  And no lawyers, judges, filing fees or trying to get a court date.  You set your own schedule.  The 1st Amendment is a wonderful thing.

[Yul Lose]

28 minutes ago, Badlands Bob #61228 said:

You can also pick a nice Saturday and go picket the dealership.  Get a really big carefully worded sign expressing your displeasure with the dealership.  Stand on the public sidewalk at their entrance and calmly talk to anyone who will listen.  They really hate when you do that.  The GM quickly does the math and figures if they lose one car sale, it is cheaper to make you happy and go away.  If you don't get any result, show up the next Saturday.  You're retired and the fresh air will do you good.  And no lawyers, judges, filing fees or trying to get a court date.  You set your own schedule.  The 1st Amendment is a wonderful thing.

I bought a Jeep Grand Cherokee a few years back and as a used car it came with an extended warranty that the initial buyer had bought. Well when I bought it the car dealer touted the extended warranty. About a month after the purchase the transmission and rear axle started acting up so I took it in for service and was informed that it would be a little over $2,000.00 to fix the problems. I told them and showed them that it had an extended warranty and those repairs should be covered. Well the company that sold the extended warranties had gone belly up about a year before I bought the vehicle and the dealership knew it and sold me the vehicle using the extended warranty as an indcentive for me to buy the car.

 

The service manager and GM both told me that there was nothing that they could do and I would have to pay to get it fixed. There was a sign shop that printed banners and such in the unit right beside my business office so I had them make up some derogatory banners about Jeep and lemons and extended warranties that the dealer sold. Early that Saturday morning I parked right out in front of the dealership and posted the banners all over the Cherokee. The first thing the service manager did was call the Escondido PD and the officer that responded said that as long as I was on public property (the sidewalk and street) I was not violating any laws and there was nothing that he could do to me. About an hour later after quite a few people had stopped and visited with me the service manager and GM came over and asked me what it would take to make me go away. I told them that they had to fix my Cherokee at no charge. They said that they would so I called my wife who came and got me and I drove the Cherokee into the service department and left it. They had it about four days if I remember correctly, but they did fix the problem.

 

 

[Cat Brules]

You may have considered telling them to give you an extended warranty equal to what you had purchased with the vehicle.

 

 

[Shooting Bull]

Have you contacted the Better Business Bureau?  Not sure if they can do anything but just the threat might help grease the wheels. I'd also consider getting the state of California involved.  The Attorney General has a special consumer site.  Or the Department of Consumer Affairs.  Get your state government to work FOR you for a change.

 

https://oag.ca.gov/consumers

http://www.dca.ca.gov/

[Ace_of_Hearts]

The Better Business Bureau is a PRIVATE BUSINESS. 

It has no power over anyone.

 

[Loophole LaRue, SASS #51438]

16 hours ago, J. Mark Flint #31954 LIFE said:

This might be true in the situations you have encountered, but I, as a litigator. think it is horrible advice.  Lying to get extensions of time and trying to pick a Judge is unethical and is grounds for attorney discipline. 

 

Filing a complaint that is not meritorious is reprehensible.

 

Case law is not created by small claims court-there is no published record of these decisions.  Even Circuit Court (which in Tennessee is the first level where Jury Trials are available), really doesn't set much precedent.  It is the Appelate/Supreme courts that set precedent..

 

I apologize for some inciteful language in my initial posting, but I still recommend you not follow the quoited advice.

 

 

J. Mark:

 

I have given up responding to those who believe that they know more than we do about the law and how the "system" works.  I have also largely abandoned any attempt to educate those ignorant few who choose to believe that all of their legal problems stem from "crooked" lawyers.  Deflecting the responsibility for your own mistakes is a sign of narcissism.  When a litigant blames the opposing lawyer, the judge and his own lawyer for the outcome of a case, it's a pretty good indicator that the problem actually lies with the litigant.

 

I've been trying cases (in 37 states) for 40 years.  I've dealt with a ton of lawyers and a ton of judges.  Overwhelmingly, I've been treated fairly and professionally.  I have always worked hard to be, in return, fair and honest with them.  No lawyer worth his or her oath would dream of lying to a judge about the basis for a continuance.  No  decent lawyer would file a false or misleading pleading.  Not only could you lose your ticket, but more seriously, you could lose your reputation.  In this profession, your reputation is your most valuable asset.

 

I accept the sad fact that there are some dishonest lawyers.  Perfection across the board is impossible.  But the numbers are comparatively tiny, and classifying all lawyers as dishonest is a gross distortion and untrue.   Certainly, any litigant who claims that they would lie and cheat to gain an advantage against an opposing party is in no position to complain about the tactics of opposing counsel, and may quickly find themselves on the wrong side of a contempt or perjury charge.   

 

Let it go, pard.   Maintain your personal and professional sense of honor, and let the chips fall where they may.  

 

LL

[Pat Riot]

Gentlemen,

Let's keep things civil and on point. Please! 

If things do not become civil from this point on I may have to shut down the thread or delete all offending posts. It's up to you.

 

Thank you.

[Hardpan Curmudgeon SASS #8967]

Again, I'd like to thank those of you who've passed on advice...

 

At this point, I've downloaded the court forms, mostly filled out and working on a written timeline/narrative.

 

Still not sure who to direct it to - I took Ace of Heart's suggestion and looked up the company on the Secretary of State's website - a few documents there, but one that caught my eye was a screen that included: 

 

Quote

 

Agent for Service of Process:

NATIONAL REGISTERED AGENTS, INC.
818 WEST SEVENTH ST STE 930 
LOS ANGELES CA 90017

 

 

I surely hope that doesn't mean I have to go to Los Angeles and serve a third party!

 

I'll make it down to the courthouse this week and talk to the "advisor."

 

Meanwhile... Dad's Midlife Crisis car remains a garage ornament.  

[Allie Mo, SASS No. 25217]

Sorry, I hid the offensive comments before seeing Pat was on the case.

 

J. Mark and Loophole, most of us here respect you and any advice you have given. Please don't let one person get you down.

 

Sincerely,

 

Allie

[Pat Riot]

Hardpan,

I went through a similar mechanical / electrical issue with my Chevy truck last year. I also had an erroneous misfire code. I replaced engine sensors, I followed recommendations on grounds, I replaced the cable connector, I reseated all my PCM cabling (no easy feat) I troubleshot and troubleshot. I was getting ready to reflash the PCM or go so far as to replace it. Eventually I found that an O2 sensor and a partially clogged Catalytic Converter  was causing some of issues but then indicatons and codes said it was one of the front 2 O2 sensors when the whole time it was the rear sensor and it didn't fail until the exhaust was hot so all my resistance / inductance testing was for naught. BUT, I also suspected the grounding of the sensors so I pulled all 3 and cleaned their sockets with a wire wheel and I cleaned up the threads on the sensors themselves.

One parts store guy swore that the sensor replacement fixed the problem while another said I wasted money replacing the sensor. Either way the problem was fixed.  

 

How many sensors are on your exhaust?

 

[J. Mark Flint #31954 LIFE]

I'm a happy camper.  Just sometimes need to say what needs to be said.

[Allie Mo, SASS No. 25217]

On ‎8‎/‎1‎/‎2017 at 8:03 AM, J. Mark Flint #31954 LIFE said:

I'm a happy camper.  Just sometimes need to say what needs to be said.

Yes, your comment was well received. However, any advice to lie to the court, should not be on this forum. So I hid that comment. As that removed your point of reference, I hid yours too.

 

Thank you!

 

Allie

[J. Mark Flint #31954 LIFE]

Just for that I'm going to buy some cat treats and pass them along to a worthwhile recipient

 

[Allie Mo, SASS No. 25217]

3 minutes ago, J. Mark Flint #31954 LIFE said:

Just for that I'm going to buy some cat treats and pass them along to a worthwhile recipient

 

Don't you mean worthless?

[J. Mark Flint #31954 LIFE]

now that you mention it. . . .

 

[The Original Lumpy Gritz]

1 hour ago, Pat Riot, SASS #13748 said:

Hardpan,

I went through a similar mechanical / electrical issue with my Chevy truck last year. I also had an erroneous misfire code. I replaced engine sensors, I followed recommendations on grounds, I replaced the cable connector, I reseated all my PCM cabling (no easy feat) I troubleshot and troubleshot. I was getting ready to reflash the PCM or go so far as to replace it. Eventually I found that an O2 sensor and a partially clogged Catalytic Converter  was causing some of issues but then indicatons and codes said it was one of the front 2 O2 sensors when the whole time it was the rear sensor and it didn't fail until the exhaust was hot so all my resistance / inductance testing was for naught. BUT, I also suspected the grounding of the sensors so I pulled all 3 and cleaned their sockets with a wire wheel and I cleaned up the threads on the sensors themselves.

One parts store guy swore that the sensor replacement fixed the problem while another said I wasted money replacing the sensor. Either way the problem was fixed.  

 

How many sensors are on your exhaust?

 

Use copper or nickle anti-seize, on those high temp. sensor threads.

TNX to the mods for the 'house cleaning' on this thread.

OLG

[Pat Riot]

Oh Crap...Hardpan, I forgot something. I found the connectors on many of my devices were dirty so I bought some CRC Electronics Cleaner (tuner bath, basically) and cleaned the contacts. 

 

RANDOM STUFF:

It appears that the O2 sensor for the front has it's connector on the firewall to the right of the block (if sitting in car).

The rear O2 sensor's connector is under the drivers seat.

The heater wires for the OE and your replacement may have different colors This link has some info on that on the 5th post down:

https://www.mazdas247.com/forum/showthread.php?123633038-O2-sensor-wiring-help-needed

 

The PCM is under the passenger seat. 

 

Here is what I would do.

1st - verify that you did wire up the new sensor correctly as OEM wiring colors and replacement sensor colors may be different.

2nd - I would check the cable connection for the Os sensor under the driver's seat...DId they remove seats to change PCM?

3rd - I would clean and reseat all the PCM cable connectors.

 

 

[Pat Riot]

On 7/30/2017 at 0:49 PM, Hardpan Curmudgeon SASS #8967 said:

Mechanics spend five hours working on the car, using all their sophisticated test equipment, computers, and even consulting their own national tech support resource.  National tech support advised them that “if problem occurred after PCM was replaced, PCM is bad – replace PCM.”

 

In addition to above, did you have them verify that the PCM was properly "flashed" or programmed?

[Pat Riot]

14 minutes ago, The Original Lumpy Gritz said:

Use copper or titanium anti-seize, on those high temp. sensor threads.

TNX to the mods for the 'house cleaning' on this thread.

OLG

I would use the Copper. It's easier to find and can be used in many applications and it's conductive.

DO NOT USE Aluminum.

Nickel is a high temp AS that is also used for O2 sensors but it's harder to find.

I haven't tried Titanium.

[Alpo]

1 hour ago, Allie Mo, SASS No. 25217 said:

Don't you mean worthless?

She prefers dog goodies.

 

[The Original Lumpy Gritz]

3 minutes ago, Pat Riot, SASS #13748 said:

I would use the Copper. It's easier to find and can be used in many applications and it's conductive.

DO NOT USE Aluminum.

Nickel is a high temp AS that is also used for O2 sensors but it's harder to find.

I haven't tried Titanium.

 Well-I was type'n & post'n again, BEFORE coffee. 

My fingers typed Ti, my little brain was scream'n 'NICKLE'.

You can get the nickle AS at NAPA. 

OLG

[The Original Lumpy Gritz]

44 minutes ago, Pat Riot, SASS #13748 said:

Oh Crap...Hardpan, I forgot something. I found the connectors on many of my devices were dirty so I bought some CRC Electronics Cleaner (tuner bath, basically) and cleaned the contacts. 

 

RANDOM STUFF:

It appears that the O2 sensor for the front has it's connector on the firewall to the right of the block (if sitting in car).

The rear O2 sensor's connector is under the drivers seat.

The heater wires for the OE and your replacement may have different colors This link has some info on that on the 5th post down:

https://www.mazdas247.com/forum/showthread.php?123633038-O2-sensor-wiring-help-needed

 

The PCM is under the passenger seat. 

 

Here is what I would do.

1st - verify that you did wire up the new sensor correctly as OEM wiring colors and replacement sensor colors may be different.

2nd - I would check the cable connection for the Os sensor under the driver's seat...DId they remove seats to change PCM?

3rd - I would clean and reseat all the PCM cable connectors.

 

 

A big 'dab' of die-electric grease, is good to use on the connectors. 

OLG

[Pat Riot]

7 minutes ago, The Original Lumpy Gritz said:

 Well-I was type'n & post'n again, BEFORE coffee. 

2 Demerits!