BILL NUMBER: SB 500 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 29, 2002
AMENDED IN SENATE JANUARY 7, 2002
AMENDED IN SENATE MARCH 26, 2001
INTRODUCED BY Senators Torlakson, Machado, and Perata
(Coauthor: Senator Alarcon)
(Coauthor: Assembly Member Aroner)
FEBRUARY 22, 2001
An act to amend Section 1722 of the Civil Code, relating to
utilities contracts .
LEGISLATIVE COUNSEL'S DIGEST
SB 500, as amended, Torlakson. Utilities
Retail merchandise, utilities, and cable television:
delivery, service , and repair: times.
(1) Existing law requires a retailer with 25 or more employees
selling merchandise to consumers, where that merchandise will be
delivered to the consumer at a later date, to specify either at the
time of the sale or at a later date prior to the delivery date, a
4-hour period within which delivery will be made if the consumer's
presence is required. Existing law sets forth similar requirements
for these retailers, with regard to the service and repair of
merchandise. Existing law provides a cause of action in small claims
court, for actual damages not to exceed $500, against a retailer for
failure to comply with these requirements, except for delays caused
by unforeseen or unavoidable occurrences beyond the control of the
retailer, when the retailer made a diligent attempt to notify the
consumer of its inability to deliver, service, or repair the
merchandise, or when the consumer was not present during the
specified time period.
This bill would require retailers and consumers to agree to the
4-hour period within which the delivery, service, or repair will take
place. The bill would increase the total amount of damages that a
small claims court can award to an amount not to exceed $600. The
bill would prohibit an action when the retailer makes a diligent
attempt to notify the consumer of its inability to deliver, service,
or repair, either in person or by telephone, but would require that
if notification is by telephone, the retailer or its agent leave a
telephone number for a return telephone call, to enable the consumer
to arrange a new 2-hour period for delivery, service, or repair with
the retailer or the retailer's agent.
(2) Existing law requires that utilities and cable
television companies inform subscribers of their right to service
connection or repair within a 4-hour period, as specified, by
offering the 4-hour period when the subscriber calls for service
connection or repair, or by notifying their subscribers by mail three
times a year of this service. Existing law further requires that
when a subscriber contracts with utilities and cable television
companies for a service connection or repair at a later date, and the
parties agree that the presence of the subscriber is required, the
utilities and cable television companies shall specify, prior to the
date of service connection or repair, the time the 4-hour period for
the service connection or repair begins, if the subscriber so
requests.
The bill would delete the option of notification of subscribers by
mail thereby requiring utilities and cable television companies to
inform subscribers of their right to service connection or repair
within a 4-hour period, under the circumstances described above, when
the subscriber calls for service connection or repair. This bill
would also require utilities and cable television companies to
specify the 4-hour period for the service connection or repair under
the circumstance described above, regardless of whether the
subscriber requests it. Existing law provides a cause
of action in small claims court, for actual damages not to exceed
$500, against a cable television company or utility for failure to
comply with these requirements, except for delays caused by
unforeseen or unavoidable occurrences beyond the control of the cable
television company or utility, when a diligent attempt was made to
notify the subscriber of the inability of the cable television
company or utility to deliver service connection or repair within the
4-hour period, or when the consumer was not present during the
specified time period.
This bill would delete the option of cable television companies
and utilities to notify subscribers by mail, of their right to
service connection or repair service within a 4-hour period. The
bill would require cable television companies to agree with
subscribers on the time for the commencement of the 4-hour period for
the service connection or repair, where the parties have agreed that
the presence of the subscriber is required, regardless of whether
the subscriber makes a request. The bill would provide that if a
service connection by a utility is not commenced within the 4-hour
period described above or as otherwise agreed to by the utility and
the subscriber, then the utility may be liable, as specified. The
bill would prohibit an action when the cable television company or
utility makes a diligent attempt to notify the subscriber of its
inability to make the service connection or repair within the 4-hour
period agreed upon, either in person or by telephone, but would
require that if notification is by telephone, the cable television
company or utility leave a telephone number for a return telephone
call, to enable the subscriber to arrange a new 2-hour period for the
service connection or repair with the cable television company or
utility. The bill would increase the total amount of damages that a
small claims court can award to an amount not to exceed $600.
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 1722 of the Civil Code is amended to read:
1722. (a) (1) Whenever a contract is entered into between a
consumer and a retailer with 25 or more employees relating to the
sale of merchandise which is to be delivered by the retailer or the
retailer's agent to the consumer at a later date, and the parties
have agreed that the presence of the consumer is required at the time
of delivery, the retailer shall specify and
the consumer shall agree, either at the time of the sale or at
a later date prior to the delivery date, on a four-hour
time period within which any delivery shall be made. Whenever a
contract is entered into between a consumer and a retailer with 25 or
more employees for service or repair of merchandise, whether or not
the merchandise was sold by the retailer to the consumer, and the
parties have agreed that the presence of the consumer is required at
the time of service or repair, upon receipt of a request for service
or repair under the contract, the retailer shall specify
and the consumer shall agree , prior to the date
of service or repair, on a four-hour period within which
the service or repair shall be commenced. Once a delivery, service,
or repair time is established, the retailer or the retailer's agent
shall deliver the merchandise to the consumer, or commence service or
repair of the merchandise, within that four-hour period.
(2) If the merchandise is not delivered, or service or repair are
not commenced, within the specified four-hour period, except for
delays caused by unforeseen or unavoidable occurrences beyond the
control of the retailer, the consumer may bring an action in small
claims court against the retailer for lost wages, expenses actually
incurred, or other actual damages not exceeding a total of
five hundred dollars ($500) six hundred dollars ($600)
.
(3) No action shall be considered valid if the consumer was not
present at the time, within the specified period, when the retailer
or the retailer's agent attempted to make the delivery, service, or
repairs or made a diligent attempt to notify the consumer by
telephone or in person of its inability to do so because of
unforeseen or unavoidable occurrences beyond its control. If
notification is by telephone, the retailer or the retailer's agent
shall leave a telephone number for a return telephone call by the
consumer to the retailer or its agent, to enable the consumer to
arrange a new two-hour period for delivery, service, or repair with
the retailer or the retailer's agent.
(4) In any small claims action, logs and other business records
maintained by the retailer or the retailer's agent in the ordinary
course of business shall be prima facie evidence of the time period
specified for the delivery, service, or repairs and of the time when
the merchandise was delivered, or of a diligent attempt by the
retailer or the retailer's agent to notify the consumer of delay
caused by unforeseen or unavoidable occurrences.
(5) It shall be a defense to the action if a diligent attempt was
made to notify the consumer of the delay caused by unforeseen or
unavoidable occurrences beyond the control of the retailer or the
retailer's agent, or the retailer or the retailer's agent was unable
to notify the consumer of the delay because of the consumer's absence
or unavailability during the four-hour period, and, in either
instance, the retailer or the retailer's agent makes the delivery,
service, or repairs within two hours of a newly agreed upon time or,
if the consumer unreasonably declines to arrange a new time for the
delivery, service, or repairs.
(b) (1) Cable television companies shall inform their subscribers
of their right to service connection or repair within a four-hour
period, if the presence of the subscriber is required, by offering
the four-hour period at the time the subscriber calls for service
connection or repair. Whenever a subscriber contracts with a cable
television company for a service connection or repair which is to
take place at a later date, and the parties have agreed that the
presence of the subscriber is required, the cable company
shall specify and the subscriber shall agree ,
prior to the date of service connection or repair, on the
time for the commencement of the four-hour period for the service
connection or repair.
(2) If the service connection or repair is not commenced within
the specified four-hour period, except for delays caused by
unforeseen or unavoidable occurrences beyond the control of the
company, the subscriber may bring an action in small claims court
against the company for lost wages, expenses actually incurred or
other actual damages not exceeding a total of five hundred
dollars ($500) six hundred dollars ($600) .
(3) No action shall be considered valid if the subscriber was not
present at the time, within the specified period, that the company
attempted to make the service connection or repair.
(4) In any small claims action, logs and other business records
maintained by the company or its agents in the ordinary course of
business shall be prima facie evidence of the time period specified
for the commencement of the service connection or repair and the time
that the company or its agents attempted to make the service
connection or repair, or of a diligent attempt by the company to
notify the subscriber in person or by telephone of a delay
caused by unforeseen or unavoidable occurrences. If
notification is by telephone, the cable television company or its
agent, shall leave a telephone number for a return telephone call by
the subscriber to the company or its agent, to enable the subscriber
to arrange a new two-hour period for service connection or repair.
(5) It shall be a defense to the action if a diligent attempt was
made to notify the subscriber of delay caused by unforeseen or
unavoidable occurrences beyond the control of the company or its
agents, or the company or its agents were unable to notify the
subscriber because of the subscriber's absence or unavailability
during the four-hour period, and, in either instance, the cable
television company commenced service or repairs within a newly agreed
upon two-hour period.
(6) No action shall be considered valid against a cable television
company pursuant to this section when the franchise or any local
ordinance provides the subscriber with a remedy for a delay in
commencement of a service connection or repair and the subscriber has
elected to pursue that remedy. If a subscriber elects to pursue his
or her remedies against a cable television company under this
section, the franchising or state or local licensing authority shall
be barred from imposing any fine, penalty, or other sanction against
the company, arising out of the same incident.
(c) (1) Utilities shall inform their subscribers of their right to
service connection or repair within a four-hour period, if the
presence of the subscriber is required, by offering the four-hour
period at the time the subscriber calls for service connection or
repair. Whenever a subscriber contracts with the utility for a
service connection or repair, and the parties have agreed that the
presence of the subscriber is required, and the subscriber has
requested a four-hour appointment, the utility shall
specify and the subscriber shall agree , prior
to the date of service connection or repair, on the time
for the commencement of the four-hour period for the service
connection or repair.
(2) If the service connection or repair is not commenced within
the specified four-hour period four-hour
period provided under paragraph (1) or another period otherwise
agreed to by the utility and the subscriber , except for delays
caused by unforeseen or unavoidable circumstances beyond the control
of the utility, the subscriber may bring an action in small claims
court against the utility for lost wages, expenses actually incurred,
or other actual damages not exceeding a total of five
hundred dollars ($500) six hundred dollars ($600)
.
(3) No action shall be considered valid if the subscriber was not
present at the time, within the specified period, that the utility
attempted to make the service connection or repair.
(4) In any small claims action, logs and other business records
maintained by the utility or its agents in the ordinary course of
business shall be prima facie evidence of the time period specified
for the commencement of the service connection or repair and of the
time that the utility attempted to make the service connection or
repair, or of a diligent attempt by a utility to notify the
subscriber in person or by telephone of delay caused by
unforeseen or unavoidable occurrences. If notification is by
telephone, the utility or its agent, shall leave a telephone number
for a return telephone call by the subscriber to the utility or its
agent, to enable the subscriber to arrange a new two-hour period for
service connection or repair.
(5) It shall be a defense to the action if a diligent attempt was
made by the utility to notify the subscriber of delay caused by
unforeseen or unavoidable occurrences beyond the control of the
utility, and the utility commenced service within a newly agreed upon
two-hour period.
(d) Any provision of a delivery, service, or repair contract in
which the consumer or subscriber agrees to modify or waive any of the
rights afforded by this section shall be void as contrary to public
policy.