Unscrupulous rug store

[badbanterer]

What is the name of your state (only U.S. law)? California

My interior designer took me into the rug store of a person she knew in Glendale to get a rug that she had identified in a catalog. There was construction in the loft at the time and so it took a long time to go pick it up (they told me to take my time). It looked great in the photo but when I finally got around to picking it up and opened it up in the loft, it was nothing like the photo.

I called and told them at the store and they said it would be no problem that this has happened with this catalog/rug before. I could bring it back and choose another. My designer, Judy and I did, but could find nothing else and everything else we did find that we could have tried, these fools kept on asking for more $$. When I told them that I had located the same rugs they wanted to charge me MORE for online for less, they were suddenly willing to match them.

After months of dealing with those idiots, I finally disputed the charge with Visa because they did not want to refund the money. Unfortunately (and stupidly of me) so much time had elapsed that they no longer could rule in my favor and could only 'ask' their bank to give me the $. Of course, if they don't have to, they won't.

I have asked them to give me the original rug and they have stalled and basically said it is in storage (w/o giving me a date as to when they are going to get it) but not given me the rug or the money for about 3 wks now.

I believe that in court, I can tell a judge that their 'no refunds' sign should only be valid if they are in a contract and since they knew that this had happened before (received the rug with a cream/very light brown/natural background) and therefore were not expecting to receive the same rug I was seeing in the photo (a rug with a white background) with this same catalog that there was no 'meeting of the minds' and therefore no contract. My question is, what is the best way to compel this #X@!!~ to give me the rug so that I do not have to waste another second on this? Should I just send a certified letter threatening court? (I secretly want to just surprise him without threatening him but at the same time just want this episode to be over. Some evil yet satisfying alternatives have been running through my mind).

If they were forced to bring the run and compare it to the catalog, there would be no question as to why I did not want the rug.

What are my chances in small claims court? Could small claims make them give me the money back even though they have a "no refunds" sign posted? I've never been and don't relish the thought of being in court but it would be easy to see/show how slimy these people are.

Thanks.

 

[justalayman]

contrary to popular belief, there is no general requirement for a store to offer refunds or exchanges on merchandise. Obviously that would not apply to any warranty of fitness or merchantability but that is not your case.

Especially if you were notified of a no refund policy, you are now bound to that policy. You failed to use due diligence and actually look at the rug, especially when it was right there. If it was not available and you could make a fair argument the picture was not an accurate representation of the actual rug, you might prevail but still no slam dunk.

so, at this point, the store owes you a rug. If they refuse to give you the rug, they owe you the money.
I would suggest you call them and simply say: I want to pick up my rug. I understand it is in storage so how quickly can you have it ready for pickup in at the store?

If you do not think whatever time they give you is quick enough, I would express that and give them a date.

If they want to argue, I would simply tell them I was going down to file a small claims case against them and would see them in court and let the judge decide.

If they come up with the rug before the hearing date, take the rug and cancel the court claim. If they don't, argue it out in court.

If they had some reasonable explanation as to why they could not retrieve the rug prior to that time, the judge may set a date by which they either must comply or refund your money.

 

[Zigner]

If they had some reasonable explanation as to why they could not retrieve the rug prior to that time, the judge may set a date by which they either must comply or refund your money.

California does not offer equitable relief through small claims...once it goes to court, it's all about the money.

 

[Isis1]

California does not offer equitable relief through small claims...once it goes to court, it's all about the money.

i learned that in class last week. yup yup!

 

[justalayman]

California does not offer equitable relief through small claims...once it goes to court, it's all about the money.

Oh, ok. I stand corrected.

§6.02 Damages and Equitable Relief


page 62 of 92

You must make damage awards in small claims cases based on the same rules as for civil cases generally. [See CC §§3300 et seq (breach of contract), 3333 (torts), 3353 et seq (general).]

You may award punitive damages in an action for breach of an obligation not arising from contract when the plaintiff can show by clear and convincing evidence that the defendant was guilty of oppression, fraud, or malice. [CC §3294(a).] Some consumer protection statutes also have specific damage provisions. For instance, treble damages are recoverable in certain bad check actions. [See CC §1719(a)(2).]

REFERENCE >> For a discussion of when damages are available under various consumer protection laws, see California Judges Benchbook: Small Claims Court and Consumer Law ch 5 (Cal CJER).
In any action to recover money, you may also grant equitable relief in the form of rescission, restitution, reformation, or specific performance. The court retains jurisdiction until full payment or performance occurs. [CCP §116.220(b); CRC 3.2108.] See §§6.03–6.04.

Specific performance of an obligation is governed by CC §3384, with some exceptions. [See CC §§3390–3392, 3394.]

from: §6.02 Damages and Equitable Relief || Small Claims Court: Procedures and Practices

and although I admit I am incorrect, I just wanted to post this too:

Cal code of civil procedure:

116.610. (a) The small claims court shall give judgment for
damages, or equitable relief, or both damages and equitable relief,
within the jurisdictional limits stated in Sections 116.220, 116.221,
and 116.231, and may make any orders as to time of payment or
otherwise as the court deems just and equitable for the resolution of
the dispute

and here is a link to the sections referred to within 116.610:

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=98130018672+4+0+0&WAISaction=retrieve

 

[justalayman]

i learned that in class last week. yup yup!

and I want to speak with your professor!!!

 

[badbanterer]

Thanks for the advice

contrary to popular belief, there is no general requirement for a store to offer refunds or exchanges on merchandise. Obviously that would not apply to any warranty of fitness or merchantability but that is not your case.

Especially if you were notified of a no refund policy, you are now bound to that policy. You failed to use due diligence and actually look at the rug, especially when it was right there. If it was not available and you could make a fair argument the picture was not an accurate representation of the actual rug, you might prevail but still no slam dunk.

so, at this point, the store owes you a rug. If they refuse to give you the rug, they owe you the money.
I would suggest you call them and simply say: I want to pick up my rug. I understand it is in storage so how quickly can you have it ready for pickup in at the store?

If you do not think whatever time they give you is quick enough, I would express that and give them a date.

If they want to argue, I would simply tell them I was going down to file a small claims case against them and would see them in court and let the judge decide.

If they come up with the rug before the hearing date, take the rug and cancel the court claim. If they don't, argue it out in court.

If they had some reasonable explanation as to why they could not retrieve the rug prior to that time, the judge may set a date by which they either must comply or refund your money.

Hi just,

I could not look at the rug because they don't stock it. I could ONLY go by the glossy photo in the catalog. While I could have looked at the rug when it arrived, it was double wrapped in plastic and heavy so I just figured it would stay clean if I left it wrapped up. I must confess that for someone (and now me) who is experienced in buying these kinds of color-critical things, the first thing to do would be to check the rug. This was my first rug and it did not occur to me that a manufacturer selling interior decorator items through a catalog would NOT make sure that the catalog was color corrected. I just assumed that you could trust that the item was going to look like the catalog unless told otherwise because we made it very clear to them that we were trying to match a white leather sofa.

Again, it was my fault because I did not look around to see their 'no refunds' sign simply because my decorator knew the owner of the store. Yes, I was very naive and will question everything and everyone before buying in these little stores (actually, I will not be buying in stores with a 'no refund' policy again unless I know exactly what I am buying).

I am going to what you suggested but in the form of a certified letter giving him 7 days, this way I have something documented.

Although I want this to be over, I would love to see him defend the color of the rug in court or his delay in handing it over.

Thanks for your help,
Jorge

 

[Silverplum]

I'm wondering what's the value of your decorator? You have no protection through him/her? This person just wanders around, shops, tells you what to buy from his/her friends, and doesn't show you the ropes (i.e., checking the rug color instead of going by the catalog), and then leaves you holding the bag???

Fire him/her. S/He sucks as a "decorator."

Hi just,

I could not look at the rug because they don't stock it. I could ONLY go by the glossy photo in the catalog. While I could have looked at the rug when it arrived, it was double wrapped in plastic and heavy so I just figured it would stay clean if I left it wrapped up. I must confess that for someone (and now me) who is experienced in buying these kinds of color-critical things, the first thing to do would be to check the rug. This was my first rug and it did not occur to me that a manufacturer selling interior decorator items through a catalog would NOT make sure that the catalog was color corrected. I just assumed that you could trust that the item was going to look like the catalog unless told otherwise because we made it very clear to them that we were trying to match a white leather sofa.

Again, it was my fault because I did not look around to see their 'no refunds' sign simply because my decorator knew the owner of the store. Yes, I was very naive and will question everything and everyone before buying in these little stores (actually, I will not be buying in stores with a 'no refund' policy again unless I know exactly what I am buying).

I am going to what you suggested but in the form of a certified letter giving him 7 days, this way I have something documented.

Although I want this to be over, I would love to see him defend the color of the rug in court or his delay in handing it over.

Thanks for your help,
Jorge

 

[justalayman]

I could not look at the rug because they don't stock it. I could ONLY go by the glossy photo in the catalog. While I could have looked at the rug when it arrived, it was double wrapped in plastic and heavy so I just figured it would stay clean if I left it wrapped up. e

first, a catalog is a picture. The colors seen are rarely exactly what they are in real life. It is simply nearly impossible and prohibitively expensive to produce colors in life like colors. Heck, colors vary from different lots of the same basic material. You could order that exact same rug and get an even different color.

In fact, just the type and amount of lighting alone can cause color differences and much much more than one would typically expect.

be very aware of that when you purchase something based on the color.

I could not look at the rug because they don't stock it

.this is a new bit of info. so, when did you order the rug, when were you aware it had been received, did you go to the store after they received it, was the rug physically where you would have been able to view it had you wanted to.

Depending on how all of that played out, you actually might have a claim for a refund due to the difference in the color represented in the catalog and the real rug unless there is a disclaimer with the seller refusing to warranty a color representation.

If you really don't want the rug, you could still take that path and try to run it through the court. The worst the court is going to do is demand the seller give you the rug you already paid for.

 

[badbanterer]

The rug arrived in the store about 2 weeks after and had I known/thought about the possible color differences, I would have opened it right then and there. It did not occur to me that the colors could be sooo vastly different. You see, my business prints logos for colleges, High School and NBA teams and while it does take time and effort (aka money invested in color management and the equipment to profile your printers and monitors) printing WSYIWYG colors is very possible (and necessary if you don't want returns). Since I have to color match logos, I just take it for grated (wrongly obviously) that anyone selling items based on color imagery would be do the same.

I have little doubt that were a judge to see the rug compared to the catalog, that they would not think them to be the same item. I've never been to court before nor do I know what or whether I have the right to expect items to match under some law. I'm an ex-Electrical Engineer so this law business is not my bailiwick.

On the other hand, I imagine that this fool would definitely NOT bring the rug nor the catalog with him to court so I'd be stuck there trying to convince the judge to imagine just how brown it was compared to the catalog

 

[justalayman]

On the other hand, I imagine that this fool would definitely NOT bring the rug nor the catalog with him to court so I'd be stuck there trying to convince the judge to imagine just how brown it was compared to the catalog

actually, if you were suing, you would have to bring the rug and the catalog to court. The plaintiff has the duty to prove their case. The defendant simply has to defend the plaintiffs case.

you make a claim, you have to prove it. If you can't prove it, your case fails. If you present evidence to support your claim, defendant then can rebut with whatever he believes justifies his actions.

 

[badbanterer]

I see, I see. So first I should be nice and get my hands on the rug and then the catalog.

Is there some kind of statute of limitation on this kind of thing? This nonsense first started with the order back in about June or July of '09.