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purchased wood flooring from distributor. Wood is damaged

Customer Question
purchased wood flooring from distributor...
purchased wood flooring from distributor. Wood is damaged by dog and had dents. Distributor website clearly states under Hardwood: Hardwood is by far the more animal friendly choice, for your hardwood can’t be stained or torn up by your Cat or Dog. Distribotr claims that the dog did the damage wnd will give discount if upgrade to harder flooring. They never addressed their Website statement. About $20,000 to remove and replace. Small claim court only allows for $5,000 for business. What is the best way to handle.
Submitted: 4 years ago.Category: Legal
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6/28/2013
Lawyer: Dimitry K., Esq., Attorney replied 4 years ago
Dimitry K., Esq.
Category: Legal
Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Thank you for your question. Please permit me to assist you with your concerns.

I am sorry to hear that the client is unhappy with the work. The website, if your client reviewed it, can be considered a potential promise beyond regular 'puffery', meaning general talking up of a product but an actual claim to a specific feature. There are three options available in this instance. First, you can contact the distributor, claim breach of terms and false advertising, and request that they comply with repairs and replacement of the items. Second, consider contacting the California Attorney General's Office and speaking with their consumer protection division. What this can be considered is an intentionally false and misleading misrepresentation that goes beyond puffery and would violate state law. This process is free but may take some time to get implemented. Finally, your clients can consider filing suit but not in small claims but in district court for damages, attorney fees, replacement fees, court costs, and potentially punitive damages. I agree that this is beyond small claims court, but higher courts are still potentially available in this instance.

Good luck.

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Lawyer: Dimitry K., Esq., Attorney replied 4 years ago

Angela,

Thank you for your follow-up. Please allow me to respond directly:

This is in response to your reply. What would be the best verbiage to dist. I did mention their website, but I think they did not seriously consider they were had false advertisement. In fact, their response to us did not reference it at all and stated that it was their dog that did the damage -
The fact they did not consider their verbiage to be misleading does not potentially take away from the fact that it may have done exactly that. If a customer relied to their detriment on their comments, and a reasonable person would have otherwise considered their comments to be proper and accurate, then they have misrepresented, intentionally or otherwise. They would still be liable for damages and for the confusion.

Good luck.

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Customer reply replied 4 years ago

I am thinking about going to County of LA department of Consumer Affairs - Mediation. If I go to small claims court, since I am a business the max is $5000. It is approx $20k worth of damages. I am the contractor and I purchased the material but the client signed off on the product. What preparation do I need. Not only is there false advertisement, we had the wood tested and it is very young wood, and might not be up to the specs of the wood grade.

Lawyer: Dimitry K., Esq., Attorney replied 4 years ago

Angela,

Great, I am happy to see that you were able to see my response. Please understand that I was not trying to give you a hard time at all, simply trying to keep our conversation in one location.

I do agree that going to consumer affairs (which is where the AG's office would have sent you) is a smart option. But it is generally a smart options for consumers, not businesses. If you are attempting to resolve a dispute directly, then likely the department would refuse to hear the case and claim it as a contractual dispute, but if the client would go to them herself, then they would agree to potentially mediate. This is why I really do not see that as the wisest approach and why instead going to the AG's office first would make more sense (if you are doing it and not the client).

Good luck.

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Customer reply replied 4 years ago

I was thinking about the time element. The client is trying to get her floors replaced. The AG would take quite awhile. The mediation states the hand individuals and/or business. We actually have us, the contractor, the client, and the distributor. Are you saying that would NOT quality for mediation.

Lawyer: Dimitry K., Esq., Attorney replied 4 years ago

Angela,

I agree that the AG and the Dept of Consumer Affairs would both take a while. You are technically the facilitator, not the aggrieved party (that would the client). As a consequence I see that more as a contractual dispute than a claim for fraud, so I can see the Dept of Consumer Affairs stating that if there is a breach, take it to court because as you are both businesses, you are deemed to be more sophisticated than individuals, and are thought to have more resources. This is why taking this complaint there from your side may not be productive.

Good luck.

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Customer reply replied 4 years ago

Is there anyway that the client can sue the Distributor in small claim. They are satisfied with our work and we have a sign off. The problem is the wood that was installed. It wasn't until several weeks later that they noticed the damage from their dog and high heel shoes.

Lawyer: Dimitry K., Esq., Attorney replied 4 years ago

Angela,

If the client had a direct agreement with the distributor, then yes, they can file suit. Otherwise they can sue you for breach, and you can turn around and file suit against the distributor to recoup your losses.

Good luck.

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Dimitry K., Esq.
Dimitry K., Esq.
Dimitry K., Esq., Attorney
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