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The Hybrid Meets The Law

by Phyllis Pollack
January 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       It seems that no matter where we turn our focus, we hear about  our environment and how it needs to be “greener.” To this end, the automakers (especially to avoid further insolvency) are emphasizing hybrid and other types of environmentally friendly automobiles; “fuel economy” seems to be the “magic words “ for this mode of transportation.

       No doubt, some consumer has already purchased a hybrid and is unhappy with the fuel efficiency of the vehicle, claiming that it is not as advertised.

      Gaetano Paduano is one such consumer and sued American Honda Motor Company, Inc. (“Honda”) claiming that the fuel efficiency of his new 2004 Honda Civil Hybrid was only half of what was stated on the Monroney sticker – the federally mandated new car label that states the fuel economy estimate required by the Environmental Protection Agency (EPA) pursuant to the Energy Policy and Conservation Act (EPCA), 49 U.S.C. §32901 et seq.

       After Honda refused his request to repurchase the vehicle, Paduano sued it in San Diego County Superior Court under the California Song-Beverly Consumer Warranty Act, the Federal Magnuson-Moss Warranty Act, and under California’s Consumer Legal Remedies Act (CLRA) and Unfair Competition Law (UCL.) (Paduano v. American Honda Motor Company, Inc., California Court of Appeal, Fourth Appellate District, Division One, Case No. D050112, January 12, 2009.)

      In his suit, Paduano claimed that Honda breached the warranty because the vehicle did not obtain the fuel economy as stated on the Monroney sticker and further Honda made deceptive and misleading advertising statements on its brochure when it stated:

       “Just drive the hybrid like you would a conventional car and save on fuel bills.”
“IS THERE ANYTHING SPECIAL I HAVE TO DO. You just have to love saving money and getting terrific gas mileage.”  (Dissent at 2.)    


       Paduano contended that after he purchased the vehicle, an unspecified employee at a Honda dealership told him that “. . .driving conditions affect the fuel efficiency of hybrid vehicles, and that his Civic Hybrid could achieve higher fuel efficiency only if he significantly altered his driving habits.” (Id. at 2.)

       Defendant Honda moved for summary judgment contending that the federal law – EPCA – pre-empted all of Paduano’s claims. The trial court agreed, granting summary judgment to Honda.

       The appellate court disagreed in part. While it agreed that federal law pre-empted the warranty claims, it determined that Paduano’s deceptive advertising claims were not pre-empted and so were viable. It therefore affirmed summary adjudication in favor of Honda on the warranty claims but reversed the trial court’s judgment on plaintiff’s deceptive advertising claims.

       One justice, O’Rourke J., dissented, on the belief that summary judgment in favor of Honda should have been affirmed in total. Agreeing with the majority that the warranty claims were pre-empted by federal law, the justice believed that Paduano’s false advertising claims were also pre-empted by this same federal statute – the EPCA. Further, the dissent pointed out that plaintiff failed to plead the false advertising claims in the complaint but raised them only in his opposition to Honda’s summary judgment. Thus, in the dissent’s view, these claims should not be considered  part of the case. Alternatively, the dissent believed that the statements at issue did not rise to the level of “false or deceptive” misrepresentations, but were mere “puffery” and nothing more. As puffery, such statements cannot support claims of liability in tort. (Dissent at 20.)

      As I have mentioned previously, I mediate “lemon-law” cases. In an effort to keep both the reader and me up to date on what the courts are saying about “lemons,” I decided to devote this blog to a “lemon” with a “twist” –a hybrid (excuse the pun!)

       . . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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