In Bourgi v. West Covina Motors, Inc., 2011 WL 2207477 (2011), the California Court of Appeal held in an unpublished decision that a dealer’s use of non-OEM parts to repair a new vehicle damaged in shipment did not negate the safe harbor of Vehicle Code 9990-1.  In a previous opinion, the Court had held that


In Bourgi I, we held that “[t]he Legislature … has declared that damage that has been repaired at a cost at or below the threshold is not ‘material’ and need not be disclosed. By allowing dealers to repair minor damage below the 3 percent threshold and sell a vehicle as new without further disclosure of the damage, the damage disclosure law provides a safe harbor for such conduct.” ( Bourgi I, supra, 166 Cal.App.4th at p. 1659.) We further held that “[t]he purpose of providing this safe harbor is to allow a dealer such as [respondent], in the proper factual situation, to do exactly what it did in this case: repair minor damage and still lawfully be entitled to treat the car as new.” (Id. at p. 1661.) Finally, we noted, “Whether damage to the Hummer met the statutory materiality threshold present[s] a question of fact under the particular circumstances of this case. It [is] for the trier of fact to determine whether the repairs actually restored the car to its predamaged condition, whether replacement parts and equipment used were original manufacturer’s, and the true ‘repairer’s’ costs.” (Id. at p. 1662.)


“Appellant contends that respondent did not adequately repair the Hummer because it used a non-OEM part for the repair. He asserts that such a repair, by definition, would not restore the vehicle to its original, new car condition, requiring disclosure under section 9992.”  The Court of Appeal rejected the appellant’s contention, explaining.


As the arbiter of fact, however, the trial court gave credence to expert Parker’s testimony that the use of non-OEM glass in this instance was both standard in the industry and immaterial. Parker, a General Motors representative, testified that the dealership is permitted to use non-OEM glass. He stated that glass might not be available from the factory, “so we allow dealerships to buy glass from local sources.” He added that glass bearing the same specifications and certified by the Department of Transportation was “acceptable” in his opinion. Thorpe himself testified the only difference between the two was the GMC insignia placed on the OEM glass. Thorpe testified the dealer made every effort to purchase parts from the manufacturer, but sometimes, as here, it had to go to a different supplier when an OEM part was not available from the factory.     In fact, appellant’s own expert admitted the GMC “bug” on the glass was the only difference between the OEM part and the non-OEM glass. Other than the tag, appellant’s expert never investigated whether any difference existed between the OEM window and the replacement window. Although the non-OEM glass was less expensive than the OEM part, the court found no evidence that the replacement window was of a lesser value. It was well within the court’s fact-finding province to find no material misrepresentation was made by respondent.