Section 3398.5 - Investigation of Facts(a) The arbitration program shall investigate, gather and organize all information necessary for a fair and expeditious decision in each dispute.(b) The arbitration program shall not require from any party any information not reasonably necessary to decide the dispute.(c) When the consumer's complaint, or the manufacturer's response, or any evidence gathered by or submitted to the arbitration program, raises any of the following issues, the program shall investigate those issues:(1) Whether the program has jurisdiction to decide the dispute.(2) Whether there is a nonconformity (Section 3396.1(1)).(3) Whether the nonconformity is a substantial nonconformity (Section 3396.1(m)).(4) The cause or causes of a nonconformity.(5) Whether the causes of a nonconformity include unreasonable use of the vehicle.(6) The number of repair attempts.(7) The time out of service for repair.(8) Whether the manufacturer has had a reasonable opportunity to repair the vehicle.(9) Factors that may affect the reasonableness of the number of repair attempts.(10) Other factors that may affect the consumer's right to a replacement of the vehicle or restitution under Civil Code Section 1793.2(d)(2).(11) Facts that may give rise to a presumption under Civil Code Section 1793.2(d)(2).(12) Factors that may rebut any presumption under Civil Code Section 1793.22(b).(13) Whether a further repair attempt is likely to remedy the nonconformity.(14) The existence and amount of any incidental damages, including but not limited to sales taxes, license fees, registration fees, other official fees, prepayment penalties, early termination charges, earned finance charges, and repair, towing and rental costs, actually paid, incurred or to be incurred by the consumer.(15) Factors that may affect the manufacturer's right to an offset for mileage under Civil Code Section 1793.2(d).(16) Facts for determining the amount of any offset for mileage under Civil Code Section 1793.2(d) if an offset is appropriate.(17) Factors that may affect any other remedy under the applicable law.(18) Any other issue that is relevant to the particular dispute.(d) The investigation required by this section may be conducted by the arbitrator or arbitrators who decide the dispute, or by other program staff, or by the arbitrator or the arbitrators and other program staff.(e) If the arbitration program determines that the program does not have jurisdiction to decide the dispute, the program's investigation of the dispute need not include other issues.(f) The arbitrator or a majority of the arbitrators may at any time request of the arbitration program any or all of the following at no cost to the consumer: (1) An inspection and written report on the condition of the vehicle by an independent automobile expert (Section 3396.1(i)).(2) Consultation with any other person or persons knowledgeable in the technical, commercial or other areas relating to the vehicle, provided that the consultation does not violate Sections 3398.1(c) and (e).(3) An opportunity for the arbitrator, or one or more of the arbitrators, to personally inspect and test drive the vehicle.(4) Further investigation and report by the arbitration program on any issue relevant to a fair and expeditious decision.(g) The staff of the arbitration program may arrange for a visual inspection and test drive of the vehicle or an inspection and report on the vehicle by an independent automotive expert or a consultation with any other expert at no cost to the consumer.Cal. Code Regs. Tit. 16, § 3398.5
1. New section filed 1-3-90; operative 2-2-90 (Register 90, No. 3).
2. Change without regulatory effect amending subsection (c)(12) and NOTE filed 8-31-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 35). Note: Authority cited: Sections 472.1(b) and 472.4(f), Business and Professions Code. Reference: 16 CFR Sections 703.4(b), 703.5(c); and Sections 1793.22(d)(1), (6) and (7), Civil Code.
1. New section filed 1-3-90; operative 2-2-90 (Register 90, No. 3).
2. Change without regulatory effect amending subsection (c)(12) and Note filed 8-31-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 35).