11713.13
. It is unlawful and a violation of this code for any
manufacturer, manufacturer branch, distributor, or distributor branch
licensed under this code to do, directly or indirectly through an
affiliate, any of the following:
(a) Prevent, or attempt to prevent, by contract or otherwise, a
dealer from acquiring, adding, or maintaining a sales or service
operation for another line-make of motor vehicles at the same or
expanded facility at which the dealer currently operates a dealership
if the dealer complies with any reasonable facilities and capital
requirements of the manufacturer or distributor.
(b) Require a dealer to establish or maintain exclusive
facilities, personnel, or display space if the imposition of the
requirement would be unreasonable in light of all existing
circumstances, including economic conditions. In any proceeding in
which the reasonableness of a facility or capital requirement is an
issue, the manufacturer or distributor shall have the burden of
proof.
(c) Require, by contract or otherwise, a dealer to make a material
alteration, expansion, or addition to any dealership facility,
unless the required alteration, expansion, or addition is reasonable
in light of all existing circumstances, including economic conditions
and advancements in vehicular technology. This subdivision does not
limit the obligation of a dealer to comply with any applicable health
or safety laws.
(1) A required facility alteration, expansion, or addition shall
not be deemed reasonable if it requires that the dealer purchase
goods or services from a specific vendor when goods or services of
substantially similar kind, quality, and general design concept are
available from another vendor. Notwithstanding the prohibitions in
this paragraph, a manufacturer, manufacturer branch, distributor, or
distributor branch may require the dealer to request approval for the
use of alternative goods or services in writing. Approval for these
requests shall not be unreasonably withheld, and the request shall be
deemed approved if not specifically denied in writing within 20
business days of receipt of the dealer's written request. This
paragraph does not authorize a dealer to impair or eliminate the
intellectual property or trademark rights of the manufacturer,
manufacturer branch, distributor, or distributor branch, or to permit
a dealer to erect or maintain signs that do not conform to the
intellectual property usage guidelines of the manufacturer,
manufacturer branch, distributor, or distributor branch. This
paragraph shall not apply to a specific good or service if the
manufacturer, manufacturer branch, distributor, or distributor branch
provides the dealer with a lump-sum payment or series of payments of
a substantial portion of the cost of that good or service, if the
payment is intended solely to reimburse the dealer for the purchase
of the specified good or service.
(2) In any proceeding in which a required facility alteration,
expansion, or addition is an issue, the manufacturer, manufacturer
branch, distributor, distributor branch, or affiliate shall have the
burden of proof.
(d) (1) Fail to pay to a dealer, within 90 days of termination,
cancellation, or nonrenewal of a franchise, all of the following:
(A) The dealer cost, plus any charges made by the manufacturer or
distributor for vehicle distribution or delivery and the cost of any
dealer-installed original equipment accessories, less any amount
invoiced to the vehicle and paid by the manufacturer or distributor
to the dealer, for all new and undamaged vehicles with less than 500
miles in the dealer's inventory that were acquired by the dealer from
the manufacturer, distributor, or another new motor vehicle dealer
franchised to sell vehicles of the same line-make, in the ordinary
course of business, within 18 months of termination, cancellation, or
nonrenewal of the franchise.
(B) The dealer cost for all unused and undamaged supplies, parts,
and accessories listed in the manufacturer's current parts catalog
and in their original packaging, except that sheet metal may be
packaged in a comparable substitute for the original package.
(C) The fair market value of each undamaged sign owned by the
motor vehicle dealer and bearing a common name, trade name, or
trademark of the manufacturer or distributor if acquisition of the
sign was required or made a condition of participation in an
incentive program by the manufacturer or distributor.
(D) The fair market value of all special tools, computer systems,
and equipment that were required or made a condition of participation
in an incentive program by the manufacturer or distributor that are
in usable condition, excluding normal wear and tear.
(E) The dealer costs of handling, packing, loading, and
transporting any items or inventory for repurchase by the
manufacturer or distributor.
(2) This subdivision does not apply to a franchisor of a dealer of
new recreational vehicles, as defined in subdivision (a) of Section
18010 of the Health and Safety Code.
(3) This subdivision does not apply to a termination that is
implemented as a result of the sale of substantially all of the
inventory and fixed assets or stock of a franchised dealership if the
dealership continues to operate as a franchisee of the same
line-make.
(e) (1) (A) Fail to pay to a dealer of new recreational vehicles,
as defined in subdivision (a) of Section 18010 of the Health and
Safety Code, within 90 days of termination, cancellation, or
nonrenewal of a franchise for a recreational vehicle line-make, as
defined in Section 3072.5, the dealer cost, plus any charges made by
the manufacturer or distributor for vehicle distribution or delivery
and the cost of any dealer-installed original equipment accessories,
less any amount invoiced to the vehicle and paid by the manufacturer
or distributor to the dealer, for a new recreational vehicle when the
termination, cancellation, or nonrenewal is initiated by a
recreational vehicle manufacturer. This paragraph only applies to new
and unused recreational vehicles that do not currently have or have
had in the past, material damage, as defined in Section 9990, and
that the dealer acquired from the manufacturer, distributor, or
another new motor vehicle dealer franchised to sell recreational
vehicles of the same line-make in the ordinary course of business
within 12 months of the termination, cancellation, or nonrenewal of
the franchise.
(B) For those recreational vehicles with odometers, paragraph (1)
shall apply to only those vehicles that have no more than 1,500 miles
on the odometer, in addition to the number of miles incurred while
delivering the vehicle from the manufacturer's facility that produced
the vehicle for delivery to the dealer's retail location.
(C) Damaged recreational vehicles shall be repurchased by the
manufacturer provided there is an offset in value for damages, except
recreational vehicles that have or had material damage, as defined
in Section 9990, may be repurchased at the manufacturer's option
provided there is an offset in value for damages.
(2) Fail to pay to a dealer of new recreational vehicles, as
defined in subdivision (a) of Section 18010 of the Health and Safety
Code, within 90 days of termination, cancellation, or nonrenewal of a
franchise, all of the following:
(A) The dealer cost for all unused and undamaged supplies, parts,
and accessories listed in the manufacturer's current parts catalog
and in their original packaging, except that sheet metal may be
packaged in a comparable substitute for the original package.
(B) The fair market value of each undamaged sign owned by the
motor vehicle dealer and bearing a common name, trade name, or
trademark of the manufacturer or distributor if acquisition of the
sign was required or made a condition of participation in an
incentive program by the manufacturer or distributor.
(C) The fair market value of all special tools, computer systems,
and equipment that were required or made a condition of participation
in an incentive program by the manufacturer or distributor that are
in usable condition, excluding normal wear and tear.
(D) The dealer costs of handling, packing, loading, and
transporting any items or inventory for repurchase by the
manufacturer or distributor.
(f) (1) Fail, upon demand, to indemnify any existing or former
franchisee and the franchisee's successors and assigns from any and
all damages sustained and attorney's fees and other expenses
reasonably incurred by the franchisee that result from or relate to
any claim made or asserted by a third party against the franchisee to
the extent the claim results from any of the following:
(A) The condition, characteristics, manufacture, assembly, or
design of any vehicle, parts, accessories, tools, or equipment, or
the selection or combination of parts or components manufactured or
distributed by the manufacturer or distributor.
(B) Service systems, procedures, or methods the franchisor
required or recommended the franchisee to use if the franchisee
properly uses the system, procedure, or method.
(C) Improper use or disclosure by a manufacturer or distributor of
nonpublic personal information obtained from a franchisee concerning
any consumer, customer, or employee of the franchisee.
(D) Any act or omission of the manufacturer or distributor for
which the franchisee would have a claim for contribution or indemnity
under applicable law or under the franchise, irrespective of and
without regard to any prior termination or expiration of the
franchise.
(2) This subdivision does not limit, in any way, the existing
rights, remedies, or recourses available to any person who purchases
or leases vehicles at retail.
(g) (1) Establish or maintain a performance standard, sales
objective, or program for measuring a dealer's sales, service, or
customer service performance that may materially affect the dealer,
including, but not limited to, the dealer's right to payment under
any incentive or reimbursement program or establishment of working
capital requirements, unless both of the following requirements are
satisfied:
(A) The performance standard, sales objective, or program for
measuring dealership sales, service, or customer service performance
is reasonable in light of all existing circumstances, including, but
not limited to, the following:
(i) Demographics in the dealer's area of responsibility.
(ii) Geographical and market characteristics in the dealer's area
of responsibility.
(iii) The availability and allocation of vehicles and parts
inventory.
(iv) Local and statewide economic circumstances.
(v) Historical sales, service, and customer service performance of
the line-make within the dealer's area of responsibility, including
vehicle brand preferences of consumers in the dealer's area of
responsibility.
(B) Within 30 days after a request by the dealer, the
manufacturer, manufacturer branch, distributor, distributor branch,
or affiliate provides a written summary of the methodology and data
used in establishing the performance standard, sales objective, or
program for measuring dealership sales or service performance. The
summary shall be in detail sufficient to permit the dealer to
determine how the standard was established and applied to the dealer.
(2) In any proceeding in which the reasonableness of a performance
standard, sales objective, or program for measuring dealership
sales, service, or customer service performance is an issue, the
manufacturer, manufacturer branch, distributor, distributor branch,
or affiliate shall have the burden of proof.
(3) As used in this subdivision, "area of responsibility" shall
have the same meaning as defined in subdivision (z) of Section
11713.3.