Senate Bill No. 386

Introduced by Senator Allen

February 24, 2015

An act to amend Section 1770 of the Civil Code, relating to consumer affairs.

LEGISLATIVE COUNSEL’S DIGEST

SB 386, as introduced, Allen. Consumer affairs.

Existing law, the Consumer Legal Remedies Act, makes unlawful certain unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer, including, among other things, advertising or promoting any event, presentation, seminar, workshop, or other public gathering regarding veterans’ benefits or entitlements that does not include a specified statement. Existing law authorizes any consumer who suffers damages as a result of the use or employment by any person of a method, act, or practice declared to be unlawful, as described above, to bring an action against that person to recover or obtain damages, restitution, an order enjoining the methods, acts, or practice, or any other relief the court deems proper.

This bill would include as an unlawful practice prohibited under the act for sale of a financial product or service that is illegal under state or federal law, including a cash payment for the assignment to a third party of the consumer’s right to receive future pension or veteran’s benefits.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1770 of the Civil Code is amended to
read:

1770.  

(a) The following unfair methods of competition and
unfair or deceptive acts or practices undertaken by any person in
a transaction intended to result or which results in the sale or lease
of goods or services to any consumer are unlawful:

(1) Passing off goods or services as those of another.

(2) Misrepresenting the source, sponsorship, approval, or
certification of goods or services.

(3) Misrepresenting the affiliation, connection, or association
with, or certification by, another.

(4) Using deceptive representations or designations of
geographic origin in connection with goods or services.

(5) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or quantities
which they do not have or that a person has a sponsorship,
approval, status, affiliation, or connection which he or she does
not have.

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

(7) 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.

(8) Disparaging the goods, services, or business of another by
false or misleading representation of fact.

(9) Advertising goods or services with intent not to sell them
as advertised.

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

(11) Advertising furniture without clearly indicating that it is
unassembled if that is the case.

(12) Advertising the price of unassembled furniture without
clearly indicating the assembled price of that furniture if the same
furniture is available assembled from the seller.

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

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

(15) Representing that a part, replacement, or repair service is
needed when it is not.

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

(17) 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 to the consummation
of the transaction.

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

(19) Inserting an unconscionable provision in the contract.

(20) Advertising that a product is being offered at a specific
price plus a specific percentage of that price unless (A) the total
price is set forth in the advertisement, which may include, but is
not limited to, shelf tags, displays, and media advertising, in a size
larger than any other price in that advertisement, and (B) 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. This subdivision shall not apply to in-store advertising
by businesses which are open only to members or cooperative
organizations organized pursuant to Division 3 (commencing with
Section 12000) of Title 1 of the Corporations Code where more
than 50 percent of purchases are made at the specific price set forth
in the advertisement.

(21) Selling or leasing goods in violation of Chapter 4
(commencing with Section 1797.8) of Title 1.7.

(22) (A) 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, and either the address or the
telephone number of the caller, and without obtaining the consent
of that person to listen to the prerecorded message.

(B) This subdivision does not apply to a message disseminated
to a business associate, customer, or other person having an
established relationship with the person or organization making
the call, to a call for the purpose of collecting an existing
obligation, or to any call generated at the request of the recipient.

(23) The home solicitation, as defined in subdivision (h) of
Section 1761, of a consumer who is a senior citizen where a loan
is made encumbering the primary residence of that consumer for
the purposes of paying for home improvements and where the
transaction is part of a pattern or practice in violation of either
subsection (h) or (i) of Section 1639 of Title 15 of the United States
Code or begin delete paragraph (e) of Section 226.32 end delete begin insert paragraphs (1), (2), and
(4), of subdivision (a) of Section 226.34 end insert of Title 12 of the Code of
Federal Regulations.

A third party shall not be liable under this subdivision unless
(A) there was an agency relationship between the party who
engaged in home solicitation and the third party or (B) the third
party had actual knowledge of, or participated in, the unfair or
deceptive transaction. A third party who is a holder in due course
under a home solicitation transaction shall not be liable under this
subdivision.

(24) (A) 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.

(B) For purposes of this paragraph, the following definitions
shall apply:

(i) “Public social services” means those activities and functions
of state and local government administered or supervised by the
State Department of Health Care Services, the State Department
of Public Health, or the State Department of Social Services, and
involved in providing aid or services, or both, including health
care services, and medical assistance, to those persons who,
because of their economic circumstances or social condition, are
in need of that aid or those services and may benefit from them.

(ii) “Public social services” also includes activities and functions
administered or supervised by the United States Department of
Veterans Affairs or the California Department of Veterans Affairs
involved in providing aid or services, or both, to veterans, including
pension benefits.

(iii) “Unreasonable fee” means a fee that is exorbitant and
disproportionate to the services performed. Factors to be
considered, when appropriate, in determining the reasonableness
of a fee, are based on the circumstances existing at the time of the
service and shall include, but not be limited to, all of the following:

(I) The time and effort required.

(II) The novelty and difficulty of the services.

(III) The skill required to perform the services.

(IV) The nature and length of the professional relationship.

(V) The experience, reputation, and ability of the person
providing the services.

(C) This paragraph shall not apply to attorneys licensed to
practice law in California, who are subject to the California Rules
of Professional Conduct and to the mandatory fee arbitration
provisions of Article 13 (commencing with Section 6200) of
Chapter 4 of Division 3 of the Business and Professions Code,
when the fees charged or received are for providing representation
in administrative agency appeal proceedings or court proceedings
for purposes of procuring, maintaining, or securing public social
services on behalf of a person or group of persons.

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

(i) “I am not authorized to file an initial application for Veterans’
Aid and Attendance benefits on your behalf, or to represent you
before the Board of Veterans’ Appeals within the United States
Department of Veterans Affairs in any proceeding on any matter,
including an application for such benefits. It would be illegal for
me to accept a fee for preparing that application on your behalf.”
The requirements of this clause do not apply to a person licensed
to act as an agent or attorney in proceedings before the Agency of
Original Jurisdiction and the Board of Veterans’ Appeals within
the United States Department of Veterans Affairs when that person
is offering those services at the advertised event.

(ii) The statement in clause (i) shall also be disseminated, both
orally and in writing, at the beginning of any event, presentation,
seminar, workshop, or public gathering regarding veterans’ benefits
or entitlements.

(B) Advertising or promoting any event, presentation, seminar,
workshop, or other public gathering regarding veterans’ benefits
or entitlements which is not sponsored by, or affiliated with, the
United States Department of Veterans Affairs, the California
Department of Veterans Affairs, or any other congressionally
chartered or recognized organization of honorably discharged
members of the Armed Forces of the United States, or any of their
auxiliaries that does not include the following statement, in the
same type size and font as the term “veteran” or the variation of
that term:

“This event is not sponsored by, or affiliated with, the United
States Department of Veterans Affairs, the California Department
of Veterans Affairs, or any other congressionally chartered or
recognized organization of honorably discharged members of the
Armed Forces of the United States, or any of their auxiliaries.
None of the insurance products promoted at this sales event are
endorsed by those organizations, all of which offer free advice to
veterans about how to qualify and apply for benefits.”

(i) The statement in this subparagraph shall be disseminated,
both orally and in writing, at the beginning of any event,
presentation, seminar, workshop, or public gathering regarding
veterans’ benefits or entitlements.

(ii) The requirements of this subparagraph shall not apply in a
case where the United States Department of Veterans Affairs, the
California Department of Veterans Affairs, or other congressionally
chartered or recognized organization of honorably discharged
members of the Armed Forces of the United States, or any of their
auxiliaries have granted written permission to the advertiser or
promoter for the use of its name, symbol, or insignia to advertise
or promote the event, presentation, seminar, workshop, or other
public gathering.

begin insert

(26) Advertising or offering for sale 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.

end insert begin delete

(26)

end delete

begin insert (27) end insert  Representing that a product is made in California by using
a Made in California label created pursuant to Section 12098.10
of the Government Code, unless the product complies with Section
12098.10 of the Government Code.

(b) (1) 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
which is used to finance a home improvement contract or any
portion begin delete thereof end delete begin insert of a home improvement contract end insert . For purposes of
this subdivision, “mortgage broker or lender” includes a finance
lender licensed pursuant to the California Finance Lenders Law
(Division 9 (commencing with Section 22000) of the Financial
Code), a residential mortgage lender licensed pursuant to the
California Residential Mortgage Lending Act (Division 20
(commencing with Section 50000) of the Financial Code), or a
real estate broker licensed under the Real Estate Law (Division 4
(commencing with Section 10000) of the Business and Professions
Code).

(2) This section shall not be construed to either authorize or
prohibit a home improvement contractor from referring a consumer
to a mortgage broker or lender by this subdivision. However, a
home improvement contractor may refer a consumer to a mortgage
lender or broker if that referral does not violate Section 7157 of
the Business and Professions Code or any other begin delete provision of end delete law.
A mortgage lender or broker may purchase an executed home
improvement contract if that purchase does not violate Section
7157 of the Business and Professions Code or any other begin delete provision
of end delete law. Nothing in this paragraph shall have any effect on the
application of Chapter 1 (commencing with Section 1801) of Title
2 to a home improvement transaction or the financing begin delete thereof end delete begin insert of
a home improvement transaction end insert .