OTA Updates and California Lemon Law Repair Attempts
Many newer cars receive software changes over a cellular or Wi-Fi connection. Owners call those over-the-air, or OTA, updates. California’s lemon law still talks about repair attempts, service facilities and days out of service. The Civil Code sections that matter most—Civil Code § 1793.2 and § 1793.22—do not use the words “over-the-air,” “remote update” or “software update.”
This post walks through what those sections do say about repair opportunities, how a remote update differs from a dealer visit on the paperwork, and how to document OTAs if a software-related warranty problem keeps coming back. It does not say that an OTA always counts as a repair attempt, and it does not say an OTA falls outside repair-attempt counting in every case. That is an open legal question for counsel on the facts of a particular vehicle. For the broader Song-Beverly framework, see our guide to the Song-Beverly Consumer Warranty Act.
What Song-Beverly requires of warranty repairs
Under § 1793.2(b), when California service and repair facilities exist and the goods do not conform to the applicable express warranties, “service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state.” Unless the buyer agrees in writing to the contrary, the goods “shall be serviced or repaired so as to conform to the applicable warranties within 30 days.” Delay beyond the manufacturer’s control can extend that 30-day clock (§ 1793.2(b)).
Subdivision (c) focuses on how the buyer presents the nonconforming goods. The buyer “shall deliver nonconforming goods to the manufacturer’s service and repair facility within this state,” with exceptions when size, weight, attachment, installation or the nature of the nonconformity make delivery unreasonable. In those cases, written notice of nonconformity can constitute return of the goods for purposes of the section, and the manufacturer then chooses how to service or repair (§ 1793.2(c)).
For a new motor vehicle, if the manufacturer or its representative “is unable to service or repair” the vehicle “to conform to the applicable express warranties after a reasonable number of attempts,” the manufacturer must promptly replace the vehicle or make restitution, and the buyer may elect restitution instead of replacement (§ 1793.2(d)(2)).
None of those sentences define “service,” “repair” or “attempt” to include or exclude a remote software push. They describe duties at service and repair facilities, delivery or notice of nonconformity, and the consequence of failing after a reasonable number of attempts.
The Tanner Act presumption of a “reasonable number of attempts”
Section 1793.22—the Tanner Consumer Protection Act—creates a rebuttable presumption about when a reasonable number of attempts have been made. Within 18 months from delivery or 18,000 miles, whichever comes first, the presumption arises if one of the following occurs (§ 1793.22(b)):
| Path | What the statute requires |
|---|---|
| Serious safety nonconformity | The same nonconformity results in a condition likely to cause death or serious bodily injury if the vehicle is driven, it has been “subject to repair two or more times” by the manufacturer or its agents, and the buyer or lessee has at least once directly notified the manufacturer (§ 1793.22(b)(1)) |
| Other same nonconformity | The same nonconformity has been “subject to repair four or more times” by the manufacturer or its agents, and the buyer has at least once directly notified the manufacturer (§ 1793.22(b)(2)) |
| Out of service | The vehicle is “out of service by reason of repair of nonconformities” by the manufacturer or its agents for a cumulative total of more than 30 calendar days (§ 1793.22(b)(3)) |
“Nonconformity” for this section and for § 1793.2(d) means a nonconformity that “substantially impairs the use, value, or safety of the new motor vehicle” (§ 1793.22(e)(1)). Direct notice under (b)(1) and (b)(2) is required only when the manufacturer clearly and conspicuously disclosed that duty with the warranty or owner’s manual (§ 1793.22(b)).
Our posts on reasonable repair attempts and the 30-day out-of-service presumption cover that math in general. This post asks a narrower question: how a remote OTA sits next to the words “subject to repair” and “out of service by reason of repair.”
How an OTA usually happens versus a dealer visit
A typical dealer warranty visit leaves a paper trail: a written repair order, concern and cause notes, parts or labor lines, dates in and out, and often a customer signature. Those records are the backbone of many lemon law files. Our page on repair orders as lemon law evidence explains what to look for on them.
An OTA is often different in practice:
- The update may install while the car is parked at home or work, not while it is sitting in a service bay.
- The owner may get an in-car prompt, a phone notification or an email, not a stamped repair order.
- Version numbers, release notes or campaign IDs may live in the manufacturer’s app or portal rather than on a dealer printout.
- The vehicle may remain drivable during or right after the install, or it may be unavailable for a short window while the update finishes.
Section 1793.2(c) still centers on delivery to a service and repair facility, or written notice when delivery cannot reasonably be accomplished. Section 1793.22(b) asks whether a nonconformity was “subject to repair” a stated number of times, or whether the vehicle was “out of service by reason of repair” for more than 30 calendar days. The statute does not say whether a silent background install, a one-tap “Install now” prompt, or a forced overnight update satisfies those phrases.
Does a remote OTA count as a repair attempt?
The Civil Code does not expressly answer that question. Sections 1793.2 and 1793.22 do not mention over-the-air updates, remote software pushes or similar terms. This article therefore does not claim that California courts have decided that every OTA is a repair attempt, or that an OTA falls outside repair-attempt counting in every case. Inventing that rule would go beyond the statute.
What the text does support, without stretching it, is this:
- Warranty nonconformities that substantially impair use, value or safety still matter, whether the fix the manufacturer offers is a part, a dealer reflash or a remote update (§§ 1793.2(d)(2), 1793.22(e)(1)).
- The manufacturer’s duty after a reasonable number of unsuccessful attempts is still replacement or restitution for a covered new motor vehicle (§ 1793.2(d)(2)).
- The Tanner presumption still turns on repairs by the manufacturer or its agents, direct notice in some paths, and cumulative out-of-service days (§ 1793.22(b)).
- Whether a particular OTA is one of those “repairs,” and whether time spent waiting for or installing it is “out of service by reason of repair,” depends on facts and legal argument that the statute itself does not settle.
Software-related warranty problems also show up on electric vehicles, but battery capacity, charging hardware and EV-specific coverage are separate topics. See lemon law for electric vehicles and EV battery defects for those angles. This post stays on the repair-attempt / OTA documentation question.
Documenting OTAs if the problem returns
Because remote updates may not generate a classic repair order, owners who keep having the same warranty issue after software changes often need a deliberate record. Useful items, when available, include:
- Screenshots or downloads of the update notice, version number, release notes and date or time of install
- Campaign, recall or technical-bulletin identifiers tied to the VIN, if the manufacturer publishes them
- App or portal history showing when the vehicle received the update
- Dealer printouts or service records if a later visit confirms the software level or reapplies the same update
- A contemporaneous note of symptoms before and after the update, including whether the vehicle was undrivable during the install
- Any written communications with the manufacturer or dealer about the same nonconformity
Those materials sit alongside ordinary repair orders and warranty history. A documentation overview is in our evidence and documentation guide. None of this creates a statutory rule that an OTA equals an attempt; it preserves facts so counsel can apply §§ 1793.2 and 1793.22 to the record that exists.
Filing deadlines still matter
Repair history only helps if a claim is still timely. Under the Song-Beverly track, warranty claims generally have a four-year limitation period (Commercial Code § 2725).
If the manufacturer has opted into California’s newer lemon law procedures (Code Civ. Proc. § 871.20 and following), a different deadline applies: generally within one year after the express warranty expires, and no later than six years after the vehicle was first delivered, with some time added for repairs and dispute programs (§ 871.21). This is general information, not advice about any vehicle; an attorney should confirm which deadline applies.
The extra time under CCP § 871.21(c) covers dispute-program tolling under Civil Code § 1793.22(c), time the vehicle is out of service for repair of a nonconformity, and up to 60 days after a pre-suit notice under § 871.24. Whether a particular OTA period counts as out-of-service time under that tolling rule raises the same open question discussed above; the Code of Civil Procedure cross-reference does not define OTA either.
Frequently asked questions
Does California lemon law mention over-the-air updates?
No. Civil Code §§ 1793.2 and 1793.22, as read on the official legislature site for this article, do not use “over-the-air,” “OTA,” “remote update” or “software update.” The repair-attempt and out-of-service rules are written in general terms.
If my car got three OTAs for the same glitch, do I automatically have three repair attempts?
Not automatically under the statute’s text. The Tanner presumption asks whether the same nonconformity was “subject to repair” two or four times, or whether the vehicle was out of service more than 30 calendar days (§ 1793.22(b)). How a remote update fits those words is not spelled out. An attorney has to evaluate the update records, any dealer visits and the nature of the nonconformity.
Can an OTA start the 30-day repair clock in § 1793.2(b)?
Section 1793.2(b) requires that service or repair be commenced within a reasonable time and, unless the buyer agrees in writing otherwise, completed within 30 days. It does not say whether a remote push alone “commences” service or repair. Facility-based service language in § 1793.2(a)–(c) is the closest statutory context, and counsel should apply it to the facts.
What if the update leaves my car undrivable for a night?
Section 1793.22(b)(3) counts days the vehicle is “out of service by reason of repair of nonconformities” by the manufacturer or its agents. The statute does not expressly say a remote install window is or is not such a day. Keep the dates, the reason the car could not be used and any manufacturer messages; whether those days count is a fact-and-law question.
Are software defects covered at all?
Coverage still turns on whether there is a warranty nonconformity that substantially impairs use, value or safety, and on the manufacturer’s chance to conform the vehicle (§§ 1793.2(d)(2), 1793.22(e)(1)). Software can be part of that analysis when it is within the applicable express warranty. That is different from deciding how to count OTAs as attempts.
Talk to a California lemon law attorney
If the same warranty problem returns after remote software updates, dealer reflashes or both, gather the sale or lease contract, every repair order, update notices and version history you can still access. Lion Lemon handles California lemon law claims involving software-related warranty issues and traditional repair visits. Request a case review or call (424) 367-1454.
Attorney Advertising. Lion Lemon is a trade name of Lion Legal, P.C., a California law firm. This article provides general information about California law and is not legal advice for any person or vehicle. Prior results do not predict a similar outcome, and each case depends on its own facts.