Dear gaild-ga;
Thank you for allowing me an opportunity to answer your interesting
question. My research is based on your allegations of unfair practices
and in no way reflects my opinion or reputation of the business in
question, though I do not (nor do I want to know) who they are, so I
must speak generally and hypothetically to your question:
Restocking fees generally do not apply to defective merchandise and
you will probably have the support of your credit card company on that
point.
You do have some recourse however in that you can contact the director
of Consumer Affairs who is mandated by law to investigate and seek
relief in your behalf if possible. This protective measure is outlined
in California Business and Professions Code 325:
BUSINESS AND PROFESSIONS CODE SECTION 325-326
325. It shall be the duty of the director to receive complaints from
consumers concerning (a) unfair methods of competition and unfair or
deceptive acts or practices undertaken by any person in the conduct of
any trade or commerce; (b) the production, distribution, sale, and
lease of any goods and services undertaken by any person which may
endanger the public health, safety, or welfare; (c) violations of
provisions of this code relating to businesses and professions
licensed by any agency of the department, and regulations promulgated
pursuant thereto; and (d) other matters consistent with the purposes
of this chapter, whenever appropriate.
The California Department of Consumer Affairs can be contacted here,
via their web site:
http://www.dca.ca.gov/
ONLINE CONSUMER COMPLAINT FORM
http://www.dca.ca.gov/complainthelp/consumer-complaint.htm
Furthermore, the California Department of Consumer Affairs addresses
this very thing in a recent statement, which you can read in its
entirety here:
LEGAL GUIDE S-6
http://www.dca.ca.gov/legal/s-6.html
It says in part that the common expectations are that ?The retail
seller gives a full cash or credit refund, and equal exchange, or some
combination of these, and the customer may return the merchandise for
at least seven days following purchase, if it is returned with proof
of purchase.?
It goes on to say: ?If a retail seller has a return policy which does
not meet these common expectations, the seller must conspicuously
display its refund policy as described in the next section. This
conspicuous display requirement applies to any retail seller which
sells goods to the public in this state whose return policy as to any
of those goods does not meet these common expectations. Thus, retail
stores, other sellers of goods at retail, and mail order sellers which
sell goods at retail in California, are among the categories of
sellers that must comply with this conspicuous display requirement if
their return policies do not meet the common expectations described
above. If a retail seller sells some goods under a return policy that
meets these common expectations, but sells other goods under another
return policy, the seller must comply with the conspicuous display
requirement as to the latter goods.?
Now, why is this important to know? Because all retailers who do not
adhere to the common refund expectations are required BY STATE LAW
(and that?s Civil Code section 1723) to display their refund policy
?on tags attached to each item sold under the policy, or on the retail
seller's order forms?. This display (on the tag or the order forms)
must state the retail seller's policy, including AT LEAST ALL of the
following:
Whether cash refund, store credit, or exchanges will be given for the
full amount of the purchase price.
The time period during which the customer may return the merchandise.
The types of merchandise which are covered by the policy.
Any other conditions which govern the refund, credit, or exchange of
merchandise (such as requiring that the merchandise be returned with
its original package and proof of purchase).
Ok, so now you?re probably saying ?Big deal! That doesn?t tell me
anything because that?s exactly what the retailer did in compliance
with the law. All he has to do now is claim that under Civil Code
Section 1723 he did what he was required to do!?
Well, not exactly?that?s precisely why I mentioned it first. He CAN
claim protection under this Civil Code but it might not do him any
good. According to you, he violated the Consumers Legal Remedies Act
(Civil Code sections 1750-1784) by sending you defective merchandise
and items not specific to your order in the first place. The bottom
line here is that the retailer cannot restock what you did not order,
and unless specifically ordered a defective piece of merchandise he
cannot (in my interpretation of the way this law reads) charge you for
restocking it when it would never have been shipped in the first place
(ideally) had HE not made the error himself. See what I mean?
?Can the retailer demand that he be allowed to replace the merchandise
rather than refund the money?? Well ? let?s see?
?A retail seller which violates the requirements of Civil Code section
1723 is liable in a court action to a customer who has returned, or
who has attempted to return, purchased merchandise by the thirtieth
day after its purchase. [my emphasis added here to make a point] THE
SELLER IS LIABLE TO THE CUSTOMER FOR THE AMOUNT OF THE PURCHASE. The
seller also may be liable to the customer under the Consumers Legal
Remedies Act (Civil Code sections 1750-1784). THE ACT PROVIDES
ADDITIONAL REMEDIES, SUCH AS ACTUAL DAMAGES AND INJUNCTIVE RELIEF, FOR
UNFAIR OR DECEPTIVE ACTS IN THE SALE OF GOODS TO CONSUMERS.?
So, clearly the seller is legally obligated to YOU, the consumer, for
the AMOUNT of the purchase. The law does not say that he is obligated
to REPLACE the merchandise or offer you a store credit of equal value.
Sure, he can probably try that, but it seems, according to the Legal
Remedies Act that you are not necessarily obligated to accept it ? and
if he?s been down this road before, he probably knows that already.
Should it come down to that however, it would definitely be a matter
for an attorney to determine for certain and I highly recommend you
consult one rather than resort to using this research as legal advice
(see disclaimer).
The Act seems clear on this issue that an aggrieved party is legally
entitled to restitution described as ?actual damages? and does not
mention replacement merchandise or services as you can see below:
CONSUMERS LEGAL REMEDIES ACT
?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 Section 1770 may bring an action against that person to
recover or obtain any of the following:
(1) Actual damages, but in no case shall the total award of damages in
a class action be less than one thousand dollars ($1,000).
(2) An order enjoining the methods, acts, or practices.
(3) Restitution of property.
(4) Punitive damages.
(5) Any other relief that the court deems proper.?
You can read the CONSUMERS LEGAL REMEDIES ACT in its entirety here:
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=42697926769+0+0+0&WAISaction=retrieve
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=4277773832+1+0+0&WAISaction=retrieve
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=42707227535+0+0+0&WAISaction=retrieve
Looking at the Act above the, we see that it specifically says ACTUAL
DAMAGES not "purchase price". So, theoretically, (by my non-legal
interpretation) you would be entitled to ALL fees incurred as a result
of the retailer?s alleged deceptive practices and not just the money
you are out on the merchandise itself. Presumably this would include
shipping, handling, restocking or whatever costs you would have
otherwise paid had he been an honest businessman. Again, I highly
recommend you consult an attorney rather than resort to using this
research as legal advice.
Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that that my research exceeds your expectations. If you have any
questions about my research please post a clarification request prior
to rating the answer. Otherwise, I welcome your rating and your final
comments and I look forward to working with you again in the near
future. Thank you for bringing your question to us.
Best regards;
Tutuzdad ? Google Answers Researcher
INFORMATION SOURCES
Defined above
SEARCH STRATEGY
SEARCH ENGINES USED:
Google ://www.google.com
SEARCH TERMS USED:
Consumer affairs, business professional code, civil code, civil
remedies, unfair deceptive practices, law |
