2005 xB's equipped with the AEM Cold Intake with Bypass Valve are Illegal in CA
 

My Scion was recently failed at a smog check because the dealer installed AEM cold air intake was not an approved aftermarket accessory for the 2005 model.
Why it passed every other year since 2005, the Air Resources Board was not in forcing that rule till 2013. However, the intake is approved for the 2004 model, which is exactly the same as the 2005.
The fact remains, the dealers were selling new Scions with an illegal intake installed.

The sticker # is: CARB EO#D-392-19

AEM problem
 

So what do you do about it? I just failed my smog check due to the part not being approved -- was installed by dealer before I bought it. Anyone get the dealer to fix it at their cost? Or do I just have to eat the expense for their mistake?