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N Cal Attorney
N Cal Attorney, Attorney
Category: Consumer Protection Law
Satisfied Customers: 8126
Experience:  since 1983
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How can I get out of my gym contract?

Resolved Question:

How can I get out of my gym contract?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  N Cal Attorney replied 1 year ago.
I'm sorry to hear this.

Did they require payment of less than $1500 when you signed the contract?
Customer: replied 1 year ago.


Yes, they just took the first months payment of $159.30.


 


Attached is the letter I sent to her and her response letter. Today she took another payment of $159.30 from my account.


 


I am not able to attach the documents and send them.

Customer: replied 1 year ago.

Here is a copy of the letter I sent her.


 


 


Dear Orshi,


San Clemente Boot Camp’s Membership Contract is in violation of California Civil Code 1812.85, please see the highlighted section of the Civil Code and copy of my contract attached. Based on this violation, I’m within my rights to cancel my contract.


Please cancel my membership effective immediately and notify me that you have done so within one week, otherwise I will take necessary action. Associated charges will no longer be accepted by my bank.


Thank you for your immediate cooperation with this matter.


Sincerely,


 


 


Tiffany O’Brien


 


 


 


 


 


 


 


CALIFORNIA CIVIL CODE § 1812.85 : California Code - Section 1812.85


 


(a) Every contract for health studio services shall provide that performance of the agreed-upon services will begin within six months after the date the contract is entered into. The consumer may cancel the contract and receive a pro rata refund if the health studio fails to provide the specific facilities advertised or offered in writing by the time indicated. If no time is indicated in the contract, the consumer may cancel the contract within six months after the execution of the contract and shall receive a pro rata refund. If a health studio fails to meet a timeline set forth in this section, the consumer may cancel the contract at any time after the expiration of the timeline. However, if following the expiration of the timeline, the health studio provides the advertised or agreed-upon services, the consumer may cancel the contract up to 10 days after those services are provided.


(b)(1) Every contract for health studio services shall, in addition, contain on its face, and in close proximity to the space reserved for the signature of the buyer, a conspicuous statement in a size equal to at least 10-point boldface type, as follows:


“You, the buyer, may cancel this agreement at any time prior to midnight of the fifth business day of the health studio after the date of this agreement, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice, or send a telegram which states that you, the buyer, are canceling this agreement, or words of similar effect. The notice shall be sent to, (Name of health studio operator) at (Address of health studio operator).”


(2) The contract for health studio services shall contain on the first page, in a type size no smaller than that generally used in the body of the document, the following: (A) the name and address of the health studio operator to which the notice of cancellation is to be mailed, and (B) the date the buyer signed the contract.


(3) The contract shall provide a description of the services, facilities, and hours of access to which the consumer is entitled. Any services, facilities, and hours of access that are not described in the contract shall be considered optional services, and these optional services shall be considered as separate contracts for the purposes of this title and Section 1812.83.


(4) Until the health studio operator has complied with this section, the buyer may cancel the contract for health studio services.


 


(5) All moneys paid pursuant to a contract for health studio services shall be refunded within 10 days after receipt of the notice of cancellation, except that payment shall be made for any health studio services received prior to cancellation.


(c) If at any time during the term of the contract, including a transfer of the contractual obligation, the health studio eliminates or substantially reduces the scope of the facilities, such as swimming pools or tennis courts, that were described in the contract, in an advertisement relating to the specific location, or in a written offer, and available to the consumer upon execution of the contract, the consumer may cancel the contract and receive a pro rata refund. The consumer may not cancel the contract pursuant to this subdivision if the health studio, after giving reasonable notice to its members, temporarily takes facilities out of operation for reasonable repairs, modifications, substitutions, or improvements. This subdivision shall not be interpreted to give the consumer the right to cancel a contract because of changes to the type or quantity of classes or equipment offered, provided the consumer is informed in the contract that the health studio reserves the right to make changes to the type or quantity of classes or equipment offered and the changes to the type or quantity of classes or equipment offered are reasonable under the circumstances.


(d)(1) If a contract for health studio services requires payment of one thousand five hundred dollars ($1,500) to two thousand dollars ($2,000), inclusive, including initiation fees or initial membership fees, by the person receiving the services or the use of the facility, the person shall have the right to cancel the contract within 20 days after the contract is executed.


(2) If a contract for health studio services requires payment of two thousand one dollars ($2,001) to two thousand five hundred dollars ($2,500), inclusive, including initiation fees or initial membership fees, by the person receiving the services or the use of the facility, the person shall have the right to cancel the contract within 30 days after the contract is executed.


(3) If a contract for health studio services requires payment of two thousand five hundred one dollars ($2,501) or more, including initiation fees or initial membership fees, by the person receiving the services or the use of the facility, the person shall have the right to cancel the contract within 45 days after the contract is executed.


(4) The right of cancellation provided in this subdivision shall be set out in the membership contract.


(5) The rights and remedies under this paragraph are cumulative to any rights and remedies under other law.


(6) A health studio entering into a contract for health studio services that requires a payment of less than one thousand five hundred dollars ($1,500), including initiation or initial membership fees and exclusive of interest or finance charges, by the person receiving the services or the use of the facilities, is not required to comply with paragraph (1), (2), or (3).


(e) Upon cancellation, the consumer shall be liable only for that portion of the total contract payment, including initiation fees and other charges however denominated, that has been available for use by the consumer, based upon a pro rata calculation over the term of the contract. The remaining portion of the contract payment shall be returned to the consumer by the health studio.


 


 

Customer: replied 1 year ago.


I sent this letter after I tried talking to her in person and via email. She originally offered me (via email) a free 30 day trial and if I still wanted to leave at the end of the 30 days, I would be able to. I declined and sent the civil code letter after speaking with an attorney friend.

Customer: replied 1 year ago.

This is the letter she sent in response, dated July 3, 2013:


I am responding to your letter dated 6-17-13 as well as your written formal cancellation request, in which you stated your intention to terminate your Membership. On advice of our legal counsel, I am informing you that you do not have an at-will termination right because you paid your dues and enjoyed the clubs privileges during the cancelation period prescribed by law, and well after that period. Regardless of any technical defects that may exist in our form contract, any attempt to cancel prior to the expiration of the term of agreement will be met with formal collections actions, as permitted by law.


That said, I am willing to save you the expense and credit rating impairment of formal collections activity by offering you the following settlement:


You pay the sum of $769.50 which represents 50% of your remaining balance that is $1593.


Your membership will be cancelled immediately upon agreement of our settlement.


You agree to maintain the terms of this settlement in strict confidence and that if you breach the confidentiality provision you shall pay liquidated damages of $2000.


 


If the terms of this are acceptable, please sign below and send a check or other method of payment. If I have not received this letter with your signature and payment by August 1, 2013, I will have no choice but to commence a formal collections process against you.


 


 

Expert:  N Cal Attorney replied 1 year ago.
My opinion is that you are correct and they are not. The Department of Consumer Affairs states:
"If a contract does not comply with the Health Studio Services Contract Law, it is void and unenforceable, and therefore subject to cancellation by you on that basis. In the event of a significant violation of the law, there is no limit on the time for canceling, except that you probably must notify the health club promptly on learning of your right to cancel, and ordinarily you should give the health club written notice of the decision to cancel."
From
http://www.dca.ca.gov/publications/legal_guides/w-10.shtml

You may want to tell your bank that it should stop letting them take payments out of your account because the contract is void and you have given notice of cancellation to the gym.

You can sue to enforce your right to cancel the contract, and for a refund, in small claims court, see
http://www.dca.ca.gov/publications/small_claims/file.shtml
and
http://www.courts.ca.gov/selfhelp-smallclaims.htm
for more information on how to do that.

I hope this information is helpful.
N Cal Attorney, Attorney
Satisfied Customers: 8126
Experience: since 1983
N Cal Attorney and 9 other Consumer Protection Law Specialists are ready to help you
Customer: replied 1 year ago.

I've already cancelled the account and notified the bank, they are attempting to refund today's charges. Are there form letters available somewhere that I can use to let her know I will sue to enforce my right to cancel the contract, and for a refund of my previously paid membership fees and court costs if she doesn't terminate my contract? Is there a service I can hire to write and send these letters and prepare for small claims court on my behalf?

Expert:  N Cal Attorney replied 1 year ago.
Thank you for the Excellent rating!

I have to ask which County you are in.
Customer: replied 1 year ago.


Orange County

Expert:  N Cal Attorney replied 1 year ago.
I have not found a standard form letter that fits your situation.

The County Small Claims Advisor can assist you, at no charge, in writing a demand letter and filling out court forms. They can not represent you or write a demand letter for you, but they can help you write a demand letter.

http://www.ocsmallclaims.com/
states:
"We provide free assistance to Small Claims litigants in Orange County!
Advisors are available to explain rules and procedures of the court*.
Call an advisor today at 714-571-5277."

Also, you can get a free consultation from some of the consumer protection attorneys listed by location at
http://lawyers.findlaw.com/lawyer/practicestatecounty/Consumer-Protection/California/Orange

I hope this information is helpful.
Expert:  N Cal Attorney replied 1 year ago.
Thank you very much for the bonus!

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