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Unfair competition, unfair business practice, unfair, deceptive, untrue, misleading advertising.

Merced, CA |

I want to sue the store for unfair competition, unfair business practice, unfair, deceptive, untrue, misleading advertising. I bought new furniture, they brought not new, used, repaired, 2010 year furniture (they told 2011). They do not want to refund my money and admit that it is not new, they offered “to repair”. I have some evidence (including emails) that they lie to me. On top of that I want to make a furniture expertise to testify that the furniture is not new, used, repaired.
Is an expertise necessary for court? Where can I find or request an expert? What evidences does court need for unfair competition cases (small claim court)?

Attorney Answers 4

Posted

First, while this may feel like unfair competition and all of those other terms you used, legally it's not. It might be fraud or breach of contract or implied warranty. Luckily you don't have to be really specific in small claims court - but don't use terms you don't understand. It's best in small claims court to use plain English.

You do not need an expert witness for small claims court. But you do need to proof the furniture was sold as new (your receipt should do it) and is NOT new - some of your emails might do that. Also pictures will be very helpful, and a witness, if you have one, perhaps a friend who was there right when you got the furniture.

Make sure you have everything organized and extra copies of everything when you go to court. Present your facts. Don't make legal arguments. Just show you bought new furniture and they sold you used furniture. That's it. And try to speak slowly and calmly.

You don't tug on Superman's cape; you don't spit into the wind; you don't pull the mask off the old Lone Ranger; And you don't get legal advice from a free Q&A page on the Internet. The above is a general statement of the law or just my opinion. I am not saying whether it applies to your situation or not because I don't know the details and you’ve not hired me as your attorney.

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Posted

Unfortunately, under California's unfair competition law [specifically Business and Professions Code section 17200 and 17500], you would NOT be entitled to money damages for the acts you described, even if you were successful in proving it. You would be entitled to injunctive relief, restitution and disgorgement of profits. As such, this type of case would probably not be appropriate for small claims court.

Under California Unfair Business Practices Act [Business & Professions Code section 17200, et seq.], a plaintiff can request “the disgorgement of money that has been wrongfully obtained or, in the language of the statute, an order ‘restor[ing] … money … which may have been acquired by means of … unfair competition.’” Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 1266, citing Business & Professions Code § 17203; cf. § 17206, 17207 [penalties].

While restitution is an available remedy under the UCL, disgorgement of money obtained through an unfair business practice is an available remedy only to the extent that it constitutes restitution. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1143 [reaffirming the holding of Kraus v. Trinity Management Servs. (2000) 23 Cal.4th 116 in the context of an individual action]. Under the UCL, “restitution means the return of money to those persons from whom it was taken or who had an ownership interest in it.” Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 455, citing Korea Supply, supra, 29 Cal.4th at 1144—1145. The object is to return to the plaintiff funds in which he or she has an ownership interest. Id.

“[A]n action under the UCL is not an all-purpose substitute for a tort or contract action. . . . Instead, the act provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices. . . . [T]he overarching legislative concern [was] to provide a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition. . . . Because of this objective, the remedies provided are limited. While any member of the public can bring suit under the act to enjoin a business from engaging in unfair competition, it is well established that individuals may not recover damages.” Korea Supply, supra, 29 Cal.4th at 1150, citations and internal quotation marks omitted. Also see Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1997) 70 Cal.App.4th 55, 67-68.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

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Posted

My colleagues are right, this is a contract and maybe a fraud claim, but not unfair competition.

Send them a demand letter, and if they don't refund your money, sue them in Small Claims court. Send the company a demand letter to their corporate agent for service of process, which you can look up on the Secretary of State's website. Send it by certified mail, return receipt requested, or by FedEx or by registered email (www.rPost.com). That way they know you're serious and you'll be able to prove receipt. Include a warning that once you sue, the lawsuit becomes a matter of public record, and specify a firm deadline, 2 or 3 days from receipt of your letter, to comply or you'll have to sue in Small Claims court. If they don't comply by your deadline, follow through and sue. Your letter might also threaten reports to the BBB, Ripoff Report, Yelp, Epinions, and to post this incident on your Facebook page.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Posted

If you sent a Consumer Legal Remedies Act cure letter to the retailer, identifying the violation of the Act, how it injures California consumers, and what steps they needed to cure the violation, the retailer would have 30 days to respond. If the retailer failed to cure the unfair practice, then you could seek additional remedies above and beyond fraud and contract damages, including attorney's fees. For a CLRA violation, you could also be a part of a class action lawsuit against the retailer regarding their practice of advertising and selling used furniture as new, if you found a plaintiff's attorney willing to bring such a lawsuit.

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