BILL NUMBER: SB 386 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 23, 2015
INTRODUCED BY Senator Allen
FEBRUARY 24, 2015
An act to amend Section 1770 of the Civil Code, and to add
Chapter 3.6 (commencing with Section 870) to Division 4 of the
Military and Veterans Code, relating to consumer
affairs. unlawful business
practices.
LEGISLATIVE COUNSEL'S DIGEST
SB 386, as amended, Allen. Consumer affairs.
Unlawful business practices.
(1) 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 , advertising or offering 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.
(2) Existing federal law prohibits payments of benefits due or to
become due under any law administered by the United States Secretary
of Veterans Affairs from being assignable. Under existing federal
law, in any case where a beneficiary entitled to pension compensation
enters into an agreement with another person under which agreement
the other person acquires for consideration the right to receive the
benefit by payment of a pension compensation, the agreement is deemed
to be an assignment and is prohibited.
Existing state law establishes a cause of action against any
person who engages in an act of unfair competition, which includes
any unlawful, unfair, or fraudulent business act or practice and
unfair, deceptive, untrue, or misleading advertising and any
prohibited advertising act or practice.
This bill would state that a violation of the aforementioned
federal law constitutes an unlawful business practice.
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) (A) 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 paragraphs (1), (2), and (4),
(4) of subdivision (a) of Section 226.34 of
Title 12 of the Code of Federal Regulations.
(B) A third party shall not be liable under
this subdivision unless (A) (1) there
was an agency relationship between the party who engaged in home
solicitation and the third party or (B) (2)
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.
(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.
(27) 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 of a home improvement contract. 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 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 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 of a home
improvement transaction.
SEC. 2. Chapter 3.6 (commencing with Section 870)
is added to Division 4 of the Military and Veterans Code
, to read:
CHAPTER 3.6. NONASSIGNABILITY OF VETERANS' BENEFITS
870. A violation of Section 5301 of Title 38 of the United States
Code, prohibiting a beneficiary entitled to pension compensation
under any law administered by the United States Secretary of Veterans
Affairs from entering into an assignment agreement with another
person where the other person acquires for consideration the right to
receive the benefit by payment of a pension, shall constitute an
unlawful business practice within the meaning of Section 17200 of the
Business and Professions Code.