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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
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Experience:  Research Attorney; Private Practice; Attorney Mentor; Mediator
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What are our legal options, please? We purchased some granite

Resolved Question:

What are our legal options, please?

We purchased some granite counter tops from a local company, Fortuna Marble on Saturday afternoon. With us was a contractor, Raul who we decided to not hire to do our job; we worried about his communication skills and craftsmanship. We told Fortuna Marble to not release the granite slabs to Raul who is not a licensed contractor. I told one clerk at the business desk. My wife told another male employee at the business desk also to not release the granite slabs to Raul, or anyone without first contacting her. We did not sign a contract or make any oral agreement with Raul.

This morning, Raul sent a colleague of his, Oscar, to collect the slabs and Fortuna released the granite slabs to Oscar. We contacted Raul and asked him to return the slabs to us. He wants $200 to do so.

We don't know who Oscar is, and we don't know where the granite is.

Fortuna tells us they are blameless since they released the slabs to Oscar and not to Raul.

Is Fortuna liable for the lost property? Has Raul committed a crime?


What does the law say, and what are our options? The local police department suggest that this is a civil matter and not a criminal one?

Thanks!

John
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 1 year ago.

LegalGems :

Hi! LegalGems here. My goal: To Do My Best To Assist You. Please remember, I can only provide general information,as this is a public forum.

LegalGems :

Hello. One moment please as I review your question in depth.

LegalGems :

This is quite surprising as generally a store will not release materials to a third party without written authorization to do so. Did you pay by credit card?

Customer:

We paid cash. Raul had a copy of a receipt and this is why we spoke with two employees to warn them to not release the granite slabs. Raul gave his receipt to Oscar.

LegalGems :

So the store's position is that they followed your instructions to NOT release it to R, but that there were no instructions as to other third parties? Did the receipt state terms of delivery on it, to the best of your recollection (i.e. the person tendering receipt has right to accept delivery)?

LegalGems :

Since there was no oral or written agreement with either Raul or Oscar, you can bring a cause of action based in tort - interference with personal property, conversion- against the person who is in possession, or the person who ever had possession, of the property. Depending on the terms of the receipt, you could bring a cause of action (breach of contract i.e. non delivery) against the store - for releasing it to an unauthorized person.

Customer:

We didn't anticipate that Raul would be sneaky and send his buddy Oscar...

Customer:

We think Raul has acted criminally. First with theft of our property and then he has tried to extort money from us for the return of the granite slabs.

Customer:

We think that Fortuna Marble was negligent.

LegalGems :

I'm looking into those statutes; but since the police declined to act, I would expect that your best action would be civil.

LegalGems :

As for the dept store, it would depend on the terms of the contract and who is authorized per the contract to accept receipt of the items. What is the value of the granite?

Customer:

How could we persuade the police to make a call or send an email to Raul. I think this would be enough to get him to simply return the slabs. Hopefully they won't come back damaged.

Customer:

The granite was $855.

LegalGems :

Are you by any chance a senior citizen?

Customer:

My wife is age 63

Customer:

I am younger.

LegalGems :

Here is the statute for theft - now, this is the Consumer Protection forum, so I can't opine too much on this, but based on my reading, this would appear to be theft: http://codes.lp.findlaw.com/cacode/PEN/3/1/13/5/s484. However, it is a classic civil tort as mentioned above. Given the amount of the granite, it may be easiest to pursue this in small claims; - it is difficult to persuade the police to pursue something they don't think justifies the expense (despite paying taxes for decades for these services). One moment please.

LegalGems :

To count as Elder Fraud, (many more statutes are available in such a case to use in your favor), one of you would have to be at least 65, so that avenue does not work.

Customer:

Are you still working on this, or is our conversation concluded, please?

LegalGems :

Sorry; we cross posted; I was pulling up the extortion statute and reviewing it. Did you want to pursue this through small claims - if you win, or they fail to show, you can get a judgment, and then you can attach any property/wages that are subject to civil judgments.?

Customer:

Sorry about the cross post. I think we'll first try to persuade Raul to return the slabs and avoid any court action. Getting a judgment may be the easy part. Getting reimbursed is something else. Also, we need the slabs for a kitchen remodel scheduled for Monday. We have another, licensed contract lined up to do the job.

Customer:

If Raul is not persuaded by an email showing the statutes, then perhaps I'll return to the police department in Hayward, CA to see I they will contact Raul on our behalf and try to persuade him to return the granite slabs.

LegalGems :

Scheduled for Monday? One thing to consider; unlicensed contractor work in the state of California is illegal. You could always report him to the licensing board; however, that does not really solve your problem...

Customer:

Yes, the Contractor's Board might make grief for Raul, but that won't really solve our problem, I agree.

LegalGems :

Small claim forms are very simple to fill out http://www.courts.ca.gov/selfhelp-smallclaims.htm - you can always prepare it and attach it to the email, letting him know you will pursue your legal options if he does not respond in a favorable and timely fashion. Also, if you incure additional expenses, this can generally be recovered (i.e. if you have to place a rush order on other granite). Keep in mind there is a duty to mitigate, so you couldn't go out and pay a huge rush fee if there are other options.

Customer:

Raul did tell me that the granite slabs are in a shop somewhere on 10th street in San Jose, but he did not tell me more than this.

Customer:

More of our problem with the granite is the effort and time for us to search for similar perfect colors which we found in the slabs that Oscar is holding for Raul.

LegalGems :

Perhaps you should talk to a police officer's supervisor - it is shameful that they would not pursue this. They took your property without your consent i.e. theft.

LegalGems :

or a city councilman? I know sometimes that works - as the city councilperson calls the police chief and then things get moving...

Customer:

I don't want to take more of your time. Thank you for your consideration and advice. It's a great idea to call a council member. Thank you for this, too.

LegalGems :

You are welcome. I wish I could have said to XYZ, problem solved. I think you would have success in small claims, but that won't be a timely solution. Good luck with the police/council member. I hope you get this resolved ASAP.

Customer:

Bye bye and have a good evening.

LegalGems :

*do XYZ

LegalGems :

You too, Take Care.

LegalGems, Lawyer
Satisfied Customers: 3201
Experience: Research Attorney; Private Practice; Attorney Mentor; Mediator
LegalGems and 3 other Consumer Protection Law Specialists are ready to help you
Expert:  LegalGems replied 1 year ago.
I wanted to be sure and thank you for using JA/Pearl.

I hope you found the information I provided useful.

If you would like to request me for your future legal inquires, please put TO LEGAL GEMS in front of the question, and I will do my best!
Take care.

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