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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 3324
Experience:  Research Attorney; Private Practice; Attorney Mentor; Mediator
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My daughter purchased a car in CA from a private party and

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My daughter purchased a car in CA from a private party and the seller did not provide her with a smog cert. The next day the ck engine light came on, it overheated and blew a head gasket. Upon getting a diag it was discovered that there was no tstat, and that the bulbs for the light warning the car was getting hot were removed. He falsely advertised the car, rigged it to look like it was in running order, and did not provide a smog cert. Do we just sue him in small claims court or is there something else we need to do? Also do you recommend using someone who will file the papers w/ court and serve the defendant for a fee?
Submitted: 11 months ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 11 months ago.

LegalGems :

Hi! LegalGems here. I have extensive consumer law experience and will use this to assist you with your issue today.

LegalGems :

In California, the seller has a statutory duty to smog the car - this cannot be waived even by consent of the buyer.

LegalGems :

If the defects were due to smog issues, the seller is responsible for the damage.

LegalGems :

In small claims, you can sue for up to $10K.

LegalGems :

You can save some money having a friend, over age 18, serve the papers; or you can hire a process server. It is a personal choice.

LegalGems :

Here is a link to the site: http://www.courts.ca.gov/selfhelp-smallclaims.htm - all the forms you need will be accessible here.

LegalGems :

Another option is to have the court send the summons etc via certified mail, for a small fee: http://www.sdcourt.ca.gov/portal/page?_pageid=55,1424484&_dad=portal&_schema=PORTAL

LegalGems :

Here is a sample demand letter. This is generally for a business, but you can use it as a model to fit the circumstances of your situation.

Customer:

the car could not be smogged due to the blown head gasket so she has the right to sue for the cost of the repairs and the cost of obtaining a smog cert correct? what about the fact that he rigged the car and lied about the condition it was in?

LegalGems :

Yes, that is correct. The second statement - that would be misrepresentation, and the remedy for that is either damages suffered (if immaterial breach) or rescission (if material).

LegalGems :

It would help if you had a statement from the mechanic detailing everything, especially the gasket issue (in case the judge isn't familiar with cars).

LegalGems :

Here is a form - this is the only way a smog test does not need to be done. http://www.dmv.ca.gov/forms/reg/reg139.pdf -it requires that one was done w/in 90 days of the sale. I'm sure that wasn't the case here given the situation.

Customer:

so she could sue for like time and trouble or being inconvenienced etc? and yes we do have a statement from the mechanic.

LegalGems :

Unfortunately no because they only consider economic damages - directly attributable. So for example, a rental car, but not lost wages (which I personally think is "reasonably foreseeable" but the courts have determined otherwise...)

Customer:

i see. well this was just so wrong... she is disabled and this is her first car she has ever had, she waited 28 yrs to be able to get one and then this jerk scams her... do you think the judge will decide in her favor and also make him pay court costs?

LegalGems :

Every judge varies, particularly in small claims, so it is difficult to predict. But legally she has a strong case (especially the smog issue and the seller's failure to comply with the law- most judges would be upset by this). You may want to see if you can find a pro bono organization to write a demand letter. Some probono organizations offer disabled individuals free legal services. Let me see if I can find anything.

Customer:

thank you!

LegalGems :

You are welcome. This may take a bit so you might want to check back in a few.

Customer:

what exactly is a demand letter?

LegalGems :

It is a letter where you set forth the issue, state a proposed solution (ie rescission of contract) and ask the seller to respond by X date to avoid the party from pursuing their legal options. It's a last attempt to resolve the issue without court intervention.

LegalGems :

Here you go: http://www.californiaprobono.org/oppsguide/organization.76329-Legal_Center_for_the_Elderly_Disabled Hopefully they will help you. They assist seniors and disabled. If not, they should be able to refer you to an appropriate agency. Here is a sample letter that is sent to a business, but can be modified to send to a private individual. This should give you an idea. But hopefully this link will help find an attorney who can handle this for you, as demand letters on letterhead seem to carry more weight than from an individual. Here's another organization that may be able to help, or provide some leads: http://www.centralcallegal.org/index.php/contact-us

Customer:

thank you!

LegalGems, Lawyer
Satisfied Customers: 3324
Experience: Research Attorney; Private Practice; Attorney Mentor; Mediator
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