The California Consumer Legal Remedies Act

In the California Civil Code, Division 3, Part 4, Title 1.5, there is the “Consumers Legal Remedies Act.” Chapter 1 contains general provisions. Section 1750 provides the title of the act as the CLRA. Section 1751 specifies that any waiver by a consumer of the provisions of this title is contrary to public policy and is unenforceable and void.

Section 1752 provides that the provisions of this title are not exclusive. The remedies provided for violation of any section of this title are in addition to any other procedures or remedies for any violation or conduct provided for in any other law.

Section 1753 states that, if any provision of this title or its application to any person or circumstance is held to be unconstitutional, the remainder of the title and its application to other persons or circumstances is not affected.

Section 1754 provides that this title’s provisions do not apply to any transaction which provides for the construction or sale of an entire residence or all or part of a structure designed for commercial or industrial occupancy, or for the sale of a lot or parcel of real property, including any site preparation incidental to such sale.

Section 1755 specifies that nothing in the title applies to the owners or employees of any advertising medium, such as newspapers, magazines, broadcast stations, billboards and transit ads, by whom any advertisement in violation of this title is published or disseminated, unless it is established that the owners or employees had knowledge of the deceptive methods, acts or practices declared to be unlawful.

Chapter 2 deals with construction and definitions. Section 1760 requires this title to be liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.

Section 1761 defines the following terms: “goods,” “services,” “person,” “consumer,” “transaction,” “senior citizen,” “disabled person,” “physical or mental impairment,” “major life activities,” and “home solicitation.”

Chapter 3 deals with deceptive practices. Section 1770 provides that the unfair methods of competition and unfair or deceptive acts or practices listed in this subdivision undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful.

The following are the 29 prohibited deceptive practices:

• Passing off goods or services as those of another.

• Misrepresenting the source, sponsorship, approval, or certification of goods or services.

• Misrepresenting the affiliation, connection, or association with, or certification by, another.

• Using deceptive representations or designations of geographic origin in connection with goods or services.

• Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have.

• Representing that goods are original or new if they have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.

• Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.

• Disparaging the goods, services, or business of another by false or misleading representation of fact.

• Advertising goods or services with intent not to sell them as advertised.

• Advertising goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limitation of quantity.

• Advertising furniture without clearly indicating that it is unassembled, if that is the case.

• Advertising the price of unassembled furniture without clearly indicating the assembled price of that furniture.

• Making false or misleading statements of fact concerning reasons for, existence of, or amounts of, price reductions.

• Representing that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law.

• Representing that a part, replacement, or repair service is needed when it is not.

• Representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not.

• Representing that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent.

• Misrepresenting the authority of a salesperson, representative, or agent to negotiate the final terms of a transaction with a consumer.

• Inserting an unconscionable provision in the contract.

• Advertising that a product is being offered at a specific price plus a specific percentage of that price unless the total price is set forth in the advertisement and the specific price plus a specific percentage of that price represents a markup from the seller’s costs or from the wholesale price of the product.

• Selling or leasing goods in violation of state law.

• Disseminating an unsolicited prerecorded message by telephone without an unrecorded, natural voice first informing the person answering the telephone of the name of the caller or the organization being represented.

• Charging or receiving an unreasonable fee to prepare, aid, or advise any prospective applicant, applicant, or recipient in the procurement, maintenance, or securing of public social services. “Public social services” is extensively defined, as well as “unreasonable fee.”

• Advertising or promoting any event, presentation, seminar, workshop, or other public gathering regarding veterans’ benefits or entitlements that does not include the specified statement in the same type size and font as the term “veteran” or any variation of that term.

• Advertising, offering for sale, or selling a financial product that is illegal under state or federal law, including any cash payment for the assignment to a third party of the consumer’s right to receive future pension or veteran’s benefits.

• Representing that a product is made in California by using a Made in California label, unless the product complies with state law.

• Failing to include either of the specified disclosures in a solicitation by a covered person, or an entity acting on behalf of a covered person, to a consumer for a consumer financial product or service. The terms “consumer financial product or service,” “covered person,” and “solicitation” are defined.

• Advertising, displaying, or offering a price for a good or service that does not include all mandatory fees or charges other than either of the specifies items.

It is an unfair or deceptive act or practice for a mortgage broker or lender, directly or indirectly, to use a home improvement contractor to negotiate the terms of any loan that is secured, whether in whole or in part, by the residence of the borrower and that is used to finance a home improvement contract or any portion of a home improvement contract.

Chapter 4 deals with remedies and procedures. Section 1780 provides that any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by the CLRA may bring an action against that person to recover or obtain any of the five forms of damages authorized.

Any consumer who is a senior citizen or a disabled person may seek and be awarded, in addition to the remedies specified, up to $5,000 where the trier of fact does all three of the required determinations.

An action may be commenced in the county in which the person against whom it is brought resides, has his or her principal place of business, or is doing business, or in the county where the transaction or any substantial portion occurred. In any action subject to this section, concurrently with the filing of the complaint, the plaintiff is required to file an affidavit stating facts showing that the action has been commenced in a county described in this section as a proper place for the trial of the action. If a plaintiff fails to file the affidavit required by this section, the court must, upon its own motion or upon motion of any party, dismiss the action without prejudice.

In addition, the court must award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.

Section 1781 provides that any consumer entitled to bring an action under Section 1780 may, if the unlawful method, act, or practice has caused damage to other consumers similarly situated, bring an action on behalf of himself and such other consumers to recover damages or obtain other relief.

The court is required to permit the suit to be maintained on behalf of all members of the represented class if all of the four specified conditions exist. If notice of the time and place of the hearing is served upon the other parties at least 10 days prior, the court is required to hold a hearing, upon motion of any party to the action which is supported by affidavit of any person or persons having knowledge of the facts, to determine if any of the three specified circumstances apply to the action.

If the action is permitted as a class action, the court may direct either party to notify each member of the class of the action. The party required to serve notice may, with the consent of the court, if personal notification is unreasonably expensive or it appears that all members of the class cannot be notified personally, give notice as prescribed by publication in a newspaper of general circulation in the county in which the transaction occurred. The notice is required to have three specified items. There are procedures for resolving class actions and when judgments occur.

Section 1782 requires, 30 days or more prior to the commencement of an action for damages pursuant to this title, the consumer to do two specified actions. The notice is required to meet specifications.

No action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.

In addition, no action for damages may be maintained under Section 1781 upon a showing by a person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 that all four of the specified conditions exist.

Attempts to comply with this section by a person receiving a demand is construed to be an offer to compromise and inadmissible as evidence, and attempts to comply with a demand are not considered an admission of engaging in an act or practice declared unlawful by Section 1770.  And, evidence of compliance or attempts to comply with this section may be introduced by a defendant for the purpose of establishing good faith or to show compliance with this section.

Section 1783 requires any action brought under the CLRA to be commenced not more than three years from the date of the commission of the method, act, or practice.

Section 1784 states that no award of damages may be given in any action based on a method, act, or practice declared to be unlawful if the person alleged to have employed or committed the method, act, or practice it does not prove that the violation was not intentional and resulted from a bona fide error notwithstanding the use of reasonable procedures, and makes an appropriate correction, repair or replacement or other remedy of the goods and services.