NCJ Number
49644
Journal
SANTA CLARA LAWYER Volume: 14 Issue: 3 Dated: (SPRING 1974) Pages: 555-574
Date Published
1974
Length
20 pages
Annotation
BECAUSE OF INCREASED CONSUMER AWARENESS AND A NEED FOR CONSUMER PROTECTION, CALIFORNIA LAW ENFORCEMENT AGENCIES ARE SETTING UP CONSUMER FRAUD DIVISIONS. STATUTORY AUTHORITY FOR AND OPERATION OF SUCH UNITS ARE DISCUSSED.
Abstract
OFTEN THE CONSUMER WITH AN APPLIANCE OR AN AUTOMOBILE WHICH DOES NOT WORK FINDS THAT THE TRADITIONAL LAW OFFERS LITTLE OR NO REMEDY. TORT ACTIONS ARE TOO EXPENSIVE. THE AMOUNTS INVOLVED ARE OFTEN MORE THAN THE LIMITS SET FOR SMALL CLAIMS COURTS. SOME FRAUDS ARE DELIBERATELY NOT WITHIN THE JURISDICTION OF A SMALL CLAIMS COURT BUT ARE NOT LARGE ENOUGH TO WARRANT THE HIRING OF A PRIVATE LAWYER. THE RESPONSE OF SEVERAL CALIFORNIA DISTRICT ATTORNEYS HAS BEEN THE ESTABLISHMENT OF FRAUD DIVISIONS DESIGNED ESPECIALLY TO HANDLE CONSUMER PROBLEMS. THE STATUTORY BASIS FOR SUCH DIVISIONS IS DICUSSED -- SECTIONS 17500 TO 17538.7 OF THE BUSINESS AND PROFESSIONS CODE AND SECTIONS 3369 TO 3370.1 OF THE CIVIL CODE. INTERPRETATIONS OF VARIOUS SECTIONS OF THESE CALIFORNIA STATE LAWS ARE GIVEN, TOGETHER WITH DESCRIPTIONS OF CASES SUCCESSFULLY PROSECUTED UNDER THIS AUTHORITY. THE ELEMENTS OF A CONSUMER FRAUD PROSECUTION ARE THAN LISTED. THE 'CAUSE OF THE ACTION' IS DETERMINED; THE AVAILABLE EVIDENCE IS ASSESSED; THE MANNER OF PROSECUTION -- IN COUNTY OR STATE COURTS -IS DETERMINED; AND THE 'PUBLIC,' THE 'FALSE OR MISLEADING STATEMENT,' AND THE 'DECEPTION' ARE DETERMINED. EACH ELEMENT IS DISCUSSED IN DETAIL. FOOTNOTES REFER TO CALIFORNIA JUDICIAL DECISIONS RELEVANT TO THESE STEPS. ACTIONS FILED IN CONJUNCTION WITH CONSUMER FRAUD PROSECUTIONS INCLUDE TEMPORARY RESTRAINING ORDERS AND THE CONSTRUCTIVE TRUST. THESE ARE DISCUSSED, TOGETHER WITH THE FACTORS INVOLVED IN OUT-OF-COURT SETTLEMENT VERSUS TRIAL. ENFORCEMENT OF THE JUDGMENT IS ALSO EXAMINED. THE SUCCESS OF EXISTING CONSUMER FRAUD UNITS IS PRAISED. THE NEED FOR MORE SUCH DIVISIONS, WELL-TRAINED AND WELL-STAFFED, IS CITED. THE ARTICLE CONTAINS EXTENSIVE LEGAL CITATIONS. (GLR)