Complaint,Petition: JOHN NEMEC VS. AMIR H. MOZAFFARIAN ET AL

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                24

25

MONICA NEMEC, SBN 292786

P.O. Box 8332
Emeryville, CA 94662
Telephone: (510) 703-5000 FILED

Fax: (925) 831-1205

Superior Court of
County of San

Attorney for Plaintiff 01/20/20
JOHN NEMEC Oh: of 42 Co

BY:VANESSA WU.

SUPERIOR COURT OF THE STATE OF CALIFORNIA Deputy
COUNTY OF SAN FRANCISCO
LIMITED JURISDICTION

JOHN NEMEC, an individual, Case No,: CGC-16-554782

AMENDED COMPLAINT FOR:

1. VIOLATION OF CALIFORNIA CIVIL
CODE SECTION 1749;

2. VIOLATION OF CALIFORNIA CIVIL
CODE SECTION 1723;

AMIR H. MOZAFFARIAN, individually and _) REMEDIES ACE, FA RORNTA Gene
doing business as Amir H. Mozaffarian Fine ) CODE SECTION 1750 et. seq,;

Jewels Since 1883, and DOES 1-10, inclusive, ) 4, VIOLATION OF CALIFORNIA’S
UNFAIR COMPETITION LAW,
CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200,
et. seq.

Plaintiff,

ee

)
)
)
)
)
) LIMITED CIVIL CASE

) Amount exceeds $10,000.00 but does not
) exceed $25,000

)

Defendants.

GENERAL ALLEGATIONS
1, Plaintiff, JOHN NEMEC (“Plaintiff” or “Nemec”) is, and at all times herein
mentioned was, an individual residing in Alamo, Contra Costa County, California.
2. Mr. Nemec is, and at all times herein mentioned was, a senior citizen as defined

by California Civil Code section 1761, subdivision @'.

‘All further statutory references are to the California Civil Code yaless otherwise indicated.

PLAINTIFE’S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2, VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et, seq.; 4. VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.

7

Clerk24

25

3, Mr. Nemec is informed, believes, and thereon alleges that defendant AMIR H.
MOZAFFARIAN, individually and doing business as Amir H. Mozaffarian Fine Jewels Since
1883 (“Defendants” or “Mozaffarian”) is, and at all time mentioned herein was, an individual
residing in and having his principal place of business in the city of San Francisco, county of San
Francisco, California.

4. Mr. Nemec is ignorant of the true names and capacities of defendants sued herein
as Does 1 through 10 inclusive, and therefore sues these defendants by such fictitious names.
Mr. Nemec will amend this complaint to allege their true names and capacities when ascertained,
Mr. Nemec is informed and believes and thereon alleges that each of the fictitiously named
defendants is responsible in some manner for the occurrences herein alleged, and that Mr.
Nemec's damages were proximately caused by their conduct.

3. Mr, Nemec is informed and believes and thereon alleges that each defendant is the
agent and/or employee of each other defendant and that each participated with each of the other
in the damages to Mr. Nemec set forth herein. Mr. Nemec will allege the true name and capacity
of each defendant when known.

6. At all times herein mentioned “Defendant's store” refers to defendant’s place of
business located at 155 Post Street, in the city of San Francisco, county of San Francisco,
California,

7. On or about December 11, 2013, Mr. Nemec purchased a pearl necklace for the
price of $6,894.75. Prior to purchase, Mr. Mozaffarian did not mention, discuss, or in any way
explain his return/exchange policy to Mr. Nemec. On December 11, 2013, Mr. Nemec signed an
invoice and paid the full purchase price by check. Mr. Nemec did not examine the text on the
invoice, and gained no actual knowledge of Mr. Mozaffarian's return/exchange policy. Since the
date of purchase, Mr. Nemec has never wished to return or exchange, nor ever attempted to
return or exchange, the pearl necklace,

8. Mr. Nemec exited Mr. Mozaffarian's store on December 11, 2013 without the
pearl necklace in order to give Mr. Mozaffarian's store the time to engrave the pearl necklace.
The parties agreed that Mr. Nemec would pick up the engraved pearl necklace at a later date.

9. On or about December 24, 2013, Mr, Nemec entered Mr. Mozaffarian's store for
the second time. Mr. Nemec purchased an owl brooch for the price of $4,350. During the same

visit, Mr. Nemec also entered into, what can best be described as, a layaway agreement with Mr.
-2-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3, VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seg.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq,0

w

*

o

a

s

o

©

10

Mozaffarian to pay for, over the course of time, a jewelry set for the price of $34,800. Prior to
paying for the owl brooch in full and prior to making a $5,000 deposit towards the price of the
jewelry set, Mr. Mozaffarian did not mention, discuss, or in any way explain his return/exchange
policy to Mr. Nemec. Once Mr. Nemec had chosen the jewelry items and negotiated their price,
Mr. Nemec signed an invoice for the owl brooch, an invoice for the jewelry set, a receipt for
credit card payment of $4,350 for the owl brooch, and a receipt for credit card deposit of $5,000
towards the jewelry set within a matter of minutes. The two credit card receipts, for example,
were issued 2 minutes apart. During this fast process, Mr. Nemec did not examine the text of the
invoices or the receipts, and gained no actual knowledge of Mr. Mozaffarian's return/exchange
policy.

10. On December 24, 2013, Mr. Nemec left Mr. Mozaffarian's store with the owl
brooch he purchased that day, and the engraved pearl necklace he had previously paid for in full
on December 11, 2013. Mr. Nemec did not acquire possession of any of the three distinct jewelry|
items comprising the jewelry set for which he deposited $5,000 that day.

11. Since the date of purchase, Mr. Nemec has never wished to return or exchange,
nor ever attempted to return or exchange, the owl brooch.

12. At all times mentioned henceforth, “jewelry set” refers to the following three
pieces of jewelry: (1) 18K yellow gold hand made necklace by Abel & Zimmerman Co., (2) 18K
yellow gold hand made bracelet by Abel & Zimmerman Co., and (3) 18K yellow gold hand
made love knot earrings by Abel & Zimmerman Co.

13, At all times mentioned henceforth, “transaction” or “agreement” refers to the
layaway agreement entered into by Mr. Nemec and Mr. Mozaffarian on December 24, 2013 at
defendant’s store over payment for the jewelry set.

WHEREFORE, plaintiff prays for judgment as hereinafter set forth.

FIRST CAUSE OF ACTION
Violation of California Civil Code Section 1749

14. | Mr. Nemec realleges and incorporates herein by reference paragraphs 1 through
13, inclusive, with the same force and effect as though said allegations were fully set forth

herein.

-3-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 ct. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

15. On December 24, 2013, Mr. Nemec entered Mr. Mozaffarian's store for the
second time. (Mr. Nemec had previously visited Mr. Mozaffarian's store on December 11, 2013.)
Mr. Nemec was searching for a unique jewelry set to give his wife as a gift for their upcoming
30" anniversary. After looking at merchandise in Mr. Mozaffarian's store, Mr. Nemec, with Mr.
Mozaffarian's help, settled on three (3) distinct pieces of jewelry that he thought would make a
beautiful gift for his wife. Specifically, the three jewelry items comprised a set; the pieces were:
(1) an 18K yellow gold hand made necklace by Abel & Zimmerman Co., (2) an 18K yellow gold
hand made bracelet by Abel & Zimmerman Co., and (3) an 18K yellow gold hand made love
knot earrings by Abel & Zimmerman Co,

16. | Mr. Nemec explained to Mr. Mozaffarian that the jewelry was intended as a gift
for Mr. Nemec’s wife for their 30" wedding anniversary, coming up on May 5, 2014. Mr.
Mozaffarian understood that Mr. Nemec was only interested in the three distinct pieces of
jewelry for his wife as a 30" anniversary gift, and no others, Mr. Nemec’s wife had never seen
the jewelry.

17. After approximately an hour spent negotiating a price for the jewelry, Mr. Nemec
and Mr. Mozaffarian agreed on a purchase price of $34,800 for the jewelry set.

18. Mr. Nemec could not pay for the full price of the jewelry set all at once on
December 24, 2013. Accordingly, Mr. Nemec and Mr. Mozaffarian agreed that Mr. Nemec
would pay for the goods over time and pick them up once he had paid for them in full.

19, On December 24, 2013, Mr. Nemec made an initial deposit of $5,000 towards the
price of the jewelry set. Mr. Nemec made this deposit in the store by credit card. Mr. Nemec
signed an invoice stating the description and price of the jewelry set, as well as a receipt for the
eredit card payment of $5,000. (A copy of the invoice is attached hereto as Exhibit A. A customey
copy of the receipt is attached hereto as Exhibit B. A copy of Mr. Nemec’s credit card statement
evidencing charge and payment of $5,000 to AMIR H. MOZAFFARIAN is attached hereto as
Exhibit C.)

20. Mr. Nemec and Mr. Mozaffarian further agreed that Mr. Mozaffarian would
charge Mr. Nemec’s credit card over time until the balance of the $34,800 was paid in full. The
parties did not discuss exact charge dates or exact charge amounts. To enable these unspecified

future payments, however, Mr. Nemec left his credit card information with Mr. Mozaffarian so

-4-

PLAINTIFF'S AMENDED LAINT FOR: 1, VIOLA’ “Al p, 2. A
CALIFORNIA CIVIL CODE SECTION 1723; 3, VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE,
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

that Mr. Mozaffarian could charge Mr. Nemec's card without Mr, Nemec being present for the
transaction.

21, Mr. Mozaffarian explained that once the balance was paid in full, Mr. Nemec
could pick up the jewelry set from Mr. Mozaffarian’s store. The parties did not agree on an exact
day that Mr. Nemec would come pick up the jewelry.

22. Atno time during Mr. Nemec's visit to the store on December 24, 2013 was there
any discussion about Mr. Mozaffarian's store refund and/or exchange policies. At no time did
Mr. Mozaffarian explain to Mr. Nemec that he would not be entitled to receive any portion(s) of
his $5,000 deposit back should Mr. Nemec decide not to proceed with the purchase of the
jewelry set for any given reason. At no time did Mr. Mozaffarian explain to Mr. Nemec that he
would not be entitled to receive any portion(s) of any future partial payment(s) back should Mr.
Nemec decide not to proceed with the purchase of the jewelry set for any given reason, At no
time during the lengthy price negotiation did Mr. Mozaffarian ever mention (even once in
passing) to Mr. Nemec that once Mr. Nemec made any payment(s), he would only be able to
recoup the value of money paid in the form of a store credit.

23. After making an initial $5,000 deposit towards the jewelry set, Mr. Nemec left
Mtr. Mozaffarian's store on December 24, 2013 with no jewelry from the jewelry set in his
possession.

24. On January 22, 2014, Mr. Mozaffarian charged Mr. Nemec's credit card in the
amount of $9,800. No receipt was signed because Mr. Nemec was not present for the transaction.
(A copy of Mr. Nemec’s credit card statement evidencing charge and payment of $9,800 to
AMIR H. MOZAFFARIAN is attached hereto as Exhibit D.)

25. — Inrelevant part, section 1749.1 defines a layaway agreement as "an agreement by
a retail seller with a consumer to retain specified consumer goods for sale to the consumer at a
specified price, in earnest of which sale the customer has deposited with the retail seller an
agreed upon sum of money". (§1749.1, subd. (c).) Here, Mr. Mozaffarian, a retail seller, entered
into an agreement with Mr. Nemec, a consumer, to retain a jewelry set for the price of $34,800,
in earnest of which Mr. Nemec deposited $5,000 with Mr. Mozaffarian on the date of the
agreement. According to this definition, the parties entered into a layaway agreement on
December 24, 2013.

-S+

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2, VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

26. Where a retail seller and a consumer make a layaway agreement, the retail seller
must comply with section 1749, The code provides as follows:

Any retail seller which permits consumers to lay away consumer goods shall provide to
any consumer entering into a layaway agreement with the seller a written statement of the}
terms and conditions of the agreement, including the following information:

(1) The amount of the deposit received.

(2) The length of time the goods will be held on layaway which may be expressed as al
period of time or as a date when final payment for the goods is due.

(3) A specific description of the goods.

(4) The total purchase price of the goods including a separate listing of any handling
or processing charges.

(5) Any other terms and conditions of the layaway agreement.

(6) That the seller will refund any layaway deposit and subsequent payments, if any,
when, before the end of the stated layaway period, the goods have for any reason become
no longer available in the same condition as at the time of the sale to the consumer.
(§§1749, subd. (1)-1749, subd. (6).)

27. Mr. Mozaffarian did not comply with section 1749 because no written statement
detailing the complete information required by said code was ever drawn up. The only written
statements that exist in reference to this agreement are invoice no. 28870 (Exhibit A) and the
receipt for credit card deposit of $5,000 (Exhibit B).

28. Invoice no. 28870 does not specify the date by which final payment for the
jewelry is due, as required by section 1749, subdivision (2). More specifically, there are no
details listing the dates on which Mr. Mozaffarian will charge Mr. Nemec's credit card, nor any
information indicating the amounts that will be charged on each transaction date. Not only are
these required details not memorialized in a written document, but the parties never actually
discussed or agreed upon these important details on December 24, 2013. Instead, the parties only
generally agreed that Mr. Mozaffarian would charge Mr, Nemec's credit card for unspecified
amounts on unspecified dates.

29. Furthermore, invoice no. 28870 does not specify the length of time the jewelry set
will be held on layaway, as required by section 1749, subdivision (2). There is no specified
length of time during which Mr. Mozaffarian will retain the jewelry set for Mr. Nemec on
layaway. Importantly, there is also no specified date after which Mr. Mozaffarian may/will offer
the jewelry set for sale to other customers should Mr. Nemec not finalize purchase of the jewelry
set by a given date. (Though Mr. Nemec and Mr. Mozaffarian have discussed Mr. Nemec's

request for a refund several times, both over the phone and in writing, Mr. Mozaffarian has never}
“6

PLAINTIFF'S AMENDED COMPLAINT FOR: 1, VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4, VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.wo

24

25

mentioned or insinuated that he is holding the jewelry set for Mr. Nemec in anticipation of Mr.
Nemec's finalizing payment on the jewelry set and picking it up. Correspondence from Mr.
Mozaffarian's attorney, Ms. Bea, dated November 21, 2016, was the first time any mention of the|
jewelry "waiting for Mr. Nemec to pick it up after completing payment” was ever made.
Relevant portion of Ms. Bea's November 21, 2016 correspondence is underlined and attached
hereto as Exhibit E.)

30. Invoice no. 28870 does not provide a separate listing of any handling or
processing charges as required by section 1749, subdivision (4). Though Mr. Nemec does not
allege that this particular subdivision of section 1749 is at issue, the language is nevertheless
missing.

31. Invoice no. 28870 does not include any other terms and conditions of the layaway
agreement as required by section 1749, subdivision (5). There is no written statement explaining
how Mr. Mozaffarian's unclear refund/exchange policy would apply in a layaway situation. Mr.
Mozaffarian's policy of "Exchange only within 5 days. No refunds" does not fit a layaway
scenario without further explanation or specification. The inapplicability of this policy to
layaway agreements is made clear by the questions it raises. With layaways consisting of
deposits and partial payments rather than a one-time payment of full purchase price, it is unclear
how Mr. Mozaffarian's policy applies to deposits and partial payments (as opposed to full
purchase price) where a consumer has received no good(s) in exchange for each distinct
payment. Additionally, consumers in layaway agreements do not acquire possession of goods
until after full payment is effectuated, so it is unclear how the exchange portion of Mr.
Mozaffarian's policy applies to layaway agreements. If Mr. Mozaffarian's exchange policy
applies strictly to goods already in a customer's possession, then it would have no bearing on
how deposits and partial payments are treated during the layaway period — it would only become
relevant after the layaway period had concluded when the customer acquired physical possession
of the good(s). Importantly, there is no written statement indicating how Mr. Nemec's $5,000
deposit or subsequent payment(s) would be handled if Mr. Nemec were to decide, for any reason.
not to finalize the purchase of the jewelry set during the layaway period.

32. Invoice no. 28870 does not include language required by section 1749,
subdivision (6). Though Mr. Nemec does not allege that this particular subdivision of section

1749 is at issue, the language is nevertheless missing.
“T+

PLAINTIFF'S AMENDED COMPLAINT FOR: 1, VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2, VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723, 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

33.  Asaretail jeweler with decades of personal experience selling expensive jewelry,
Mr. Mozaffarian has surely experienced customers changing their minds. In order to protect
against potential disagreements and misunderstandings, Mr. Mozaffarian should have know to
clearly warn Mr. Nemec (or any customer) of the full consequences that awaited him were Mr.
Nemec to change his mind about purchasing the jewelry set.

34. Mr. Mozaffarian failed to comply with section 1749, which requires that all
relevant details, but at a minimum those outlined in sections 1749, subdivision (1)-1749,
subdivision (6), be agreed to and memorialized in writing at the time of the transaction. Had Mr.
Mozaffarian complied with section 1749, it is unlikely the parties would be in the instant dispute.

35.  Asaresult of a few conversations between Mr. Nemec and Mr. Nemec’s wife
(hereinafter "Mrs. Nemec") on or about February 2014, Mr. Nemec decided that he should not
purchase the jewelry set for his wife for their 30" anniversary. Specifically, Mr. and Mrs, Nemec
had recently discovered that a significant portion of Mrs. Nemec's jewelry had been stolen.
Stolen items included gifts Mr. Nemec bought his wife for her 25" birthday, her 30" birthday,
for the birth of their first daughter, for the birth of their second daughter, for anniversaries, and
for multiple Christmases. Not knowing Mr. Nemec had already paid $14,800 towards a jewelry
set for her, on or about February 2014, Mrs. Nemec told Mr. Nemec that she hoped he would not
spend any money on fine jewelry for her for their upcoming 30" wedding anniversary because of]
this recent heartbreaking theft.

36. Due to these conversations, on or about February 2014, Mr. Nemec called Mr.
Mozaffarian to explain the situation to him. Mr. Nemec explained that he no longer wished to
purchase the jewelry set for his wife, and that he would like a refund of the money paid to Mr.
Mozaffarian so far.

37. Upon this request, Mr. Mozaffarian told Mr. Nemec that he was "not in the
business of losing money," and that he had already declared the sale as taking place in 2013.

38.  Inresponse to this, and to try to maintain a good relationship with Mr.
Mozaffarian, Mr. Nemec tried to come up with a way to use the $14,800 for a different item. In
the end, however, conversations between Mr. and Mrs. Nemec led Mr. Nemec to believe it was
best not to purchase any more fine jewelry for Mrs. Nemec.

39. Since January 22, 2014, Mr. Mozaffarian has not made further charges to Mr.

Nemec's credit card.
=8-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1, VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE,
SECTION 1750 ct. seq, 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17206, et. seq,24

25

40. Since February 2014, Mr. Nemec has requested a refund from Mr. Mozaffarian
multiple times. To date, Mr. Nemec has paid Mr. Mozaffarian $14,800. To date, Mr. Mozaffarian|
has not refunded any portion of the $14,800 to Mr. Nemec.

41. Mr. Nemec never acquired possession of any of the three jewelry items
| comprising the jewelry set.

WHEREFORE, plaintiff prays for judgment as hereinafter set forth.

SECOND CAUSE OF ACTION;
Violation of California Code of Civil Procedure Section 1723

42. | Mr. Nemec realleges and incorporates herein by reference paragraphs 1 through
41, inclusive, with the same force and effect as though said allegations were fully set forth

herein.

43, Section 1723 provides as follows:

Every retail seller which sells goods to the public in this state that has a policy as to any
of those goods of not giving full cash or credit refunds, or of not allowing equal
exchanges, or any combination thereof, for at least seven days following purchase of
the goods if they are returned and proof of their purchase is presented, shall
conspicuously display that policy either on signs posted at each cash register and
sales counter, at each public entrance, on tags attached to each item sold under that
policy, or on the retail seller's order forms, if any. This display shall state the store's
policy, including, but not limited to, whether cash refund, store credit, or exchanges will
be given for the full amount of the purchase price; the applicable time period; the types of
merchandise which are covered by the policy; and any other conditions which govern the
refund, credit, or exchange of merchandise. (§1723, subd. (a).) [Emphasis added.]

44. — The bottom of invoice no, 28870 (Exhibit A) furnished to Mr. Nemec on

| December 24, 2013 reads: "Exchange Only Within 5 Days. No Refunds." Mr. Mozaffarian’s

return and/or exchange policy, therefore, fails to offer the minimum required by section 1723.
45. Pursuant to section 1723, when a retail seller's return and/or exchange policy fails

to meet the minimum standards set out by said code, the seller must display their return and/or

exchange policy conspicuously either within the physical store or on an order form that a

customer fills out when placing an order.

il 46. During Mr. Nemec's visit to Mr. Mozaffarian's store on December 24, 2013, Mr.

Nemec did not observe a single sign, poster, or any kind of display referencing Mr.

Mozaffarian’s return and/or exchange policy. Mr. Nemec did not observe a single tag or

=9-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

attachment to any piece of jewelry referencing Mr. Mozaffarian’s return and/or exchange policy.
Mr. Nemec did not observe any sign, poster, or display referencing Mr. Mozaffarian’s return
and/or exchange policy at or near the cash register in Mr. Mozaffarian’s store. (At no time during|
Mr. Nemec's first visit to Mr, Mozaffarian's store on December 11, 2013 did Mr. Nemec observe
any signs, posters, displays, or tags referencing Mr. Mozaffarian's return and/or exchange policy,
either.)

47, Mr. Nemec never completed an order form — he only signed invoice no. 28872
(Exhibit A) and a credit card receipt (Exhibit B). The Harper Collins Dictionary defines an order
form as "a form with blanks in which a purchaser indicates desired items." (See Collins English
Dict. Online.) Merriam-Webster defines an order form as "a form that customers can use to order
products from a company." (See Merriam-Webster Dict. Online.) The Cambridge English
Dictionary defines an order form as "a printed form that a customer uses to request goods or a
service." (See Cambridge Dict. Online.) These definitions emphasize that order forms are
documents completed by customers — not by sellers. This definition is further underscored in a
California Supreme Court case, for instance, where the court writes that National Geographic
members and subscribers fill out "an order form enclosed with the mail announcements ... [to
be] completed and mailed to the administrative offices..." (National Geographic Society v. State
Board of Equalization (1976) 16 Cal. 3d 637, 640.) In contrast, an invoice is defined as “an
itemized list of goods or services furnished by a seller to a buyer, ... a bill of costs." (See Black's
Law Dict. (10th ed. 2014) p. 956.) Order forms and invoices, therefore, are two distinct items
used for distinct purposes. On December 24, 2013, Mr. Nemec signed invoice no. 28870, which
provided an itemized list of goods (the jewelry set) and their accompanying cost ($34,800) — he
did not complete an order form. In prior written communications, Mr. Mozaffarian and Ms. Bea
have both referred to invoice no. 28870 (Exhibit A) as an invoice, and not as an order form. In
correspondence dated September 9, 2016, Mr, Mozaffarian refers to the document Mr. Nemec
signed on December 24, 2013 as an invoice. (Relevant portions of said correspondence are
underlined and attached hereto as Exhibit F.) In correspondence dated November 21, 2016, Ms.
Bea refers to the document Mr. Nemec signed on December 24, 2013 as an invoice. (Relevant
portions of said correspondence are underlined and attached hereto as Exhibit G.) (Mr. Nemec

never completed an order form on December 11, 2013, either.)

-10-

PLAINTIFF'S AMENDED COMPLAINT FOR: I, VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2, VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

48. At no time on December 24, 2013 before making his initial $5,000 deposit
towards the purchase price of the jewelry set did Mr. Mozaffarian explain his return and/or
exchange policy to Mr. Nemec. In particular, Mr. Mozaffarian never warned Mr. Nemec that he
would not be entitled to a refund of his $5,000 deposit once paid. Mr. Mozaffarian never warned
Mr. Nemec that he would not be entitled to a refund of any future partial payments towards the
purchase price of the jewelry set once made. Mr. Mozaffarian did not warn Mr. Nemec that once
any money was paid, Mr. Nemec would only be able to recoup the value of that money via store
credit. (At no time during Mr. Nemec's first visit to Mr. Mozaffarian's store on December 11,
2013 did Mr. Mozaffarian explain any of his return and/or exchange policies to Mr. Nemec,
either.)

49. Mr. Nemec had no actual knowledge of Mr. Mozaffarian's return and/or exchange
policy. During his visit to Mr. Mozaffarian's store on December 24, 2013, Mr. Nemec's focus
was entirely dedicated to looking through Mr. Mozaffarian's unique selection, looking closely at
the details on various jewelry items, thinking about how the jewelry would look on his wife,
thinking about what clothing his wife could pair this jewelry with, etc. Once he had identified a
set he thought was beautiful, appropriate, and one that his wife would like, Mr. Nemec's focus
turned entirely to negotiating a price for the set with Mr. Mozaffarian. So, when it came to
signing four pieces of paper, one after the other, Mr. Nemec did not read their contents — he just
signed, trusting that Mr. Mozaffarian had discussed all relevant issues with him. (The same can
be said for Mr. Nemec's December 11, 2013 visit.) Mr. Nemec did not actually notice or read the
policy until he retrieved invoice no. 28870 and accompanying customer receipt from his files,
prompted by several phone conversations with Mr. Mozaffarian.

50. Had Mr. Mozatfarian made clear to Mr. Nemec that Mr. Nemec would not be
entitled toa refund of any deposits or partial payments made during the layaway period and
before the goods were ever acquired, Mr. Nemec would not have entered into this layaway
agreement for the jewelry set.

51. | As acustomer who had already paid full purchase price of $6,894.75 for a pearl
| necklace on December 11, 2013, paid full purchase price of $4,350 for an owl brooch on
December 24, 2013, and was entering into a layaway agreement to pay $34,800 to Mr.
Mozaffarian over time for a jewelry set, Mr. Nemec was relying on Mr. Mozaffarian to give him

all the necessary and relevant information that could adversely affect him should any of the
-ll-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3, VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

transactions not transpire as anticipated. As a retail seller of items worth not $34, not $3,400, but
over $34,000, Mr. Mozaffarian should have, at a very minimum, told Mr. Nemec that he would
be bound to store credit the minute he made a payment.

$2. Section 1723 provides that "any retail store which violates [section 1723] shall be
liable to the buyer for the amount of the purchase if the buyer returns, or attempts to return, the
purchased goods on or before the 30" day after their purchase.” (§1723, subd. (c)(1).) To
purchase means "to acquire; to buy for a price." (The People v. W.A. Cockrill (1923) 62 Cal.
App. 22, 33.) Here, Mr. Nemec never acquired the jewelry set. In The People v. W.A. Cockrill,
Cockrill's initial payment of $150 (total purchase price was $2,250) was consistently referred to
as payment "on the purchase price," suggesting that a partial payment on or towards a full
purchase price is not the same as full purchase price, and therefore cannot effectuate purchase.
(/d. at p. 33.) To the contrary, partial payments only secure "an option fo purchase" and
therefore, cannot be characterized as an act of purchase. (/bid.) Mr. Nemec's initial deposit of
$5,000 and his subsequent partial payment of $9,800 cannot be considered a "purchase" of the
jewelry set. By all accounts, Mr. Nemec never purchased the jewelry set as evidenced by the fact
that the jewelry set is still in Mr. Mozaffarian's possession, and has always been so. As Mr.
Nemec never acquired the jewelry set, he was also never able to return or attempt to return the
goods. Pursuant to the definition of "purchase," Mr. Nemec's partial payments are not sufficient
to start the 30-day toll referenced by section 1723, subdivision (c)(1), and therefore, Mr. Nemec's|
multiple requests for refunds were and still are timely.

53. Section 1723, subdivision (c)(2), also provides that violations of section 1723
"shall be subject to the remedies provided in the Consumer Legal Remedies Act" (Section 1750
et seq.) ("CLRA"). Pursuant to sections 1723(c)(2) and 1780, Mr. Nemec requests actual
damages, attorneys’ fees, and other relief, as permitted by law.

WHEREFORE, plaintiff prays for judgment as hereinafter set forth.

THIRD CAUSE OF ACTI
Violation of California’s Consumer Legal Remedies Act ("'CLRA") Section 1750 et seq.
54, Mr. Nemec realleges and incorporates herein by reference paragraphs 1 through
53, inclusive, with the same force and effect as though said allegations were fully set forth

herein.
~12-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE.
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

55. The "CLRA" is meant to protect California consumers from unfair acts or
practices, Section 1760 provides that the "CLRA" "shall be liberally construed and applied to
promote its underlying purposes, which are to protect consumers against unfair and deceptive
business practices and to provide efficient and economical procedures to secure such protection."
(§1760.) Furthermore, the existence of an unfair business practice is a question of fact
determined in light of all the circumstances surrounding a case. (People ex re. Bill Lockyer v.
Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508.)

56. Section 1770, subdivision (a)(14), specifically prohibits representations that a
"transaction confers or involves rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law." Mr. Mozaffarian violated section 1770 by representing
that his business has rights and remedies that are prohibited by law, specifically that Mr.
Mozaffarian’s refund and/or exchange policy allows for only store credit, when, in fact, such
policy violates section 1723, as set forth above.

57. Furthermore, section 1770, subdivision (a)(19), characterizes "inserting an
unconscionable provision in the contract" as one of multiple examples of unfair and unlawful
practices. An unconscionable provision is one that is "shockingly unjust or unfair." (See Black's
Law Dict. (10th ed. 2014) p. 1757.) It is unfair and unjust to the consumer for an experienced
jewelry retail seller to omit material information that would result in the consumer losing the
ability to use his money the way he wants — particularly when that sum of money is in the
thousands. To be material, information need only have "some logical connection with the
consequential facts." (See Black's Law Dict. (10 ed. 2014) p. 1124.) Here, Mr. Mozaffarian
violated section 1770 by informing Mr. Nemec after he made his $5,000 deposit and subsequent
partial payment of $9,800, that no refunds would be allowed. Had Mr. Mozaffarian told Mr.
Nemec that he would not be entitled to refunds before Mr. Nemec made a payment, Mr. Nemec
would not have entered into the layaway agreement for the jewelry set.

58. On or about September 3, 2016, Mr. Nemec notified Mr. Mozaffarian of the
unlawful practices described in this complaint by written notice, as required by section 1782. The
notice contained a demand that Mr. Mozaffarian refund Mr. Nemec’s deposits. The notice was
sent by certified mail, return receipt requested, to 155 Post Street, San Francisco, California
94108. (A copy of Mr. Nemec’s notice and demand is attached hereto as Exhibit H.)

-13-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et, seg.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.59, Pursuant to section 1782, subdivision (b), Mr. Mozaffarian was required to
respond to the notice and demand within 30 days of its receipt by either correcting, repairing,
replacing, or rectifying the violation set forth in the notice and demand or by agreeing to correct,
repair, replace, or rectify the violation within a reasonable time. Mr. Mozaffarian has not
corrected or offered to correct the violation set forth in the notice by refunding Mr. Nemec the
$14,800 that has been in Mr. Mozaffarian's possession for over 3 years.

60. As aresult of the "CLRA" violations referenced in paragraphs 56 and 57 of this
complaint, Mr. Nemec has suffered actual damages in the amount of $14,800.

61. In addition to the actual damages claimed, Mr. Nemec also seeks a civil penalty of
$5,000 as authorized by section 1780, subdivision (b)(1).

WHEREFORE, plaintiff prays for judgment as hereinafter set forth.

FOURTH CAUSE OF ACTION

Violation of California’s Unfair Competition Law, California Business and Professions
Code section 17200, et. seq.

62, Mr. Nemec realleges and incorporates herein by reference paragraphs | through
61, inclusive, with the same force and effect as though said allegations were fully set forth
herein.

63. California’s Unfair Competition Law (“UCL”), California Business and
Professions Code section 17200, protects both consumers and competitors from unfair
competition by promoting fair competition in commercial markets for goods and services.
California Business and Professions Code defines unfair competition as "any unlawful, unfair, or
fraudulent business act or practice." (Cal. Bus. & Prof. Code §17200.) A business practice need
only meet one of the three criteria to be considered unfair competition. A retailer's conduct may
be deemed unfair or fraudulent even if it is not deemed unlawful, and vice versa. (Cel-Tech
Communications, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 180.)

64, Mr. Mozaffarian is guilty of an unlawful practice by violating California Civil
Code Section 1749 as set forth above.

65. Mr. Mozaffarian is guilty of an unlawful practice by violating California Civil
Code Section 1723 as set forth above.

-14-

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et. seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND.
PROFESSIONS CODE SECTION 17200, et. seq.24

25

66. Mr. Mozaffarian is guilty of an unlawful practice by violating the California
Consumer Legal Remedies Act, the "CLRA," as set forth above.

67. Fraud exists where there is an "intentional misrepresentation, deceit, or
concealment of a material fact know to the defendant with the intention on the part of the
defendant of thereby depriving a person of property or legal rights or otherwise causing injury."
(§3294, subd. (c)(3).) Fraud exists where members of the public are likely to be deceived. (Jn re
Tobacco II Cases (2009) 46 Cal.4th 298, 312.) A retail seller's return and/or exchange policy is a
material term of any transaction because it directly affects a consumer’s choice of, or conducts
regarding, whether to purchase a product, as discussed in paragraph 57, above. Here, Mr.
Mozaffarian intentionally concealed his no-refund policy so that Mr. Nemec would not be able to|
receive his money back if he changed his mind. Members of the public are likely to be deceived
by this intentional concealment as evidenced not only by Mr. Nemec being deceived, but also
because fine jewelers in San Francisco within blocks of Mr. Mozaffarian's store routinely offer
30-day full refunds. Jewelers like Shreve & Co., JM Lang Antiques, Macy's, Neiman Marcus,
and Saks Fifth Avenue, for example, all offer full refunds within 30 days. Pursuant to these
definitions, Mr. Mozaffarian is guilty of a fraudulent practice.

68. | Mr. Nemec has suffered harm in the form of actual monetary damages as a direct
and proximate result of Mr. Mozaffarian’s conduct.

69, Pursuant to California Business and Professions Code section 17203, Mr. Nemec
seeks an order enjoining Mr. Mozaffarian and his employees from continuing to engage in the
unfair, unlawful, and fraudulent conduct described herein. Mr. Nemec seeks an order (1)
requiring Mr. Mozaffarian to cease the unfair and unlawful practices described herein; and (2)
awarding reasonable costs and attorneys’ fees pursuant to California Code of Civil Procedure

section 1021.5.

WHEREFORE, plaintiff respectfully prays as follows:

1, That this Court finds and declares the Defendant’s acts and practices as described
herein to be unlawful, unfair and fraudulent;

2. That Defendant be permanently enjoined from engaging in the unlawful, unfair,
and fraudulent acts and practices alleged herein;

3. That plaintiff be awarded compensatory damages according to proof;
-15-

PLAINTIFF'S AMENDED COMPLAINT FOR; 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et, seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.24

25

4, That plaintiff be awarded general, special, and consequential damages according
to proof

5. For any and all other relief under Business and Professions Code sections 17200
and 17500, et. seq.;

6. For any and all relief available under the "CLRA;"

7. For a civil penalty of $5,000 as authorized by California Civil Code section 1780;
8. That plaintiff be awarded attorneys’ fees and expenses pursuant to California
Civil Code sections 1780 and 1723, and California Code of Civil Procedure section
1021.5.

9. For costs of suit herein incurred; and

10. For such other and further relief as the court may deem proper.

Date: January 19, 2017 L "Aig OF 4 Lt NEMEC
6
Mawuig ALUM

AY
_ Mottica Nemec, Est
‘" Attorney for Plaintiff John Nemec

- 16+

PLAINTIFF'S AMENDED COMPLAINT FOR: 1. VIOLATION OF CALIFORNIA CIVIL CODE SECTION 1749; 2. VIOLATION OF
CALIFORNIA CIVIL CODE SECTION 1723; 3. VIOLATION OF CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE
SECTION 1750 et, seq.; 4. VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND
PROFESSIONS CODE SECTION 17200, et. seq.EXHIBIT Aae (a) 1G 28870

"4 \fa/

FE (335) 391,9995)! AMIR H. MOZAFFARIAN

Fee (415) 391-9992 - Friis Zoesols Hon E57

www.AmirH Mozaffarian.com LES Pot Foret

: Fen Rocrvtsees, CA BS

Aéene Wr Toh SL Nemec San 12/24 l12

Haddross! < 1521 Sat Alphosus Kea Selig) 7é/l- Pogo
i 4Lilome C4. v4.57 £925) 831 - 1242.
| lauanny DESCRIPTION cove AMOUNT

i nnn

: [te T/8K ells gald Fine Made Nechlace| G-4555,_ 26 250
Made by Abels Zunmermanl ak,

| Gh Crmad Y

| Ue | 8K Vela 2old Hand Made Race Pie ast te 10,750.
1 | Marcle hr Aheld Zimmerman 0 of

Cera uh

|
ER ISK Yelbs)e0Hl Hincl Made lave. haat G-35| 9°"
|

(panits: iiele 4s Abst Pilea f gir
: % v
ree C2E MON _cle posit BS 000 ~ Ysa afelfreree =

| CHARGE ; CHECK 4 CASH | [ Vax 2.8007
| | Vv | | /\ ledehalitecongfartuin 5 DAYS, NO REFUNDS. | TOTAL 3 4, a0"
| | CUSTOMER SIGNATURE [? Wait

oe Po ‘CUSTOMER'S COPYEXHIBIT B.

AtCUE TUAUCAPPARLAR,
155 POST S*
rRANCISCO, CA 91198

3 A821

me chant 1D: HNOONIWT E386 *
Terminal 1D: 3231632
345379095887

CREDIT CARD

VISA SALE

CRD & ~ OOOOXXRXKL 864
INVOICE : 0004
Batch #: 000489
Appicval Code: 024712
Fitiy Method: Swiped
Mode: line

1 DUP +

3S EACHANGE
Wir Ole

CUSTOMER COPYEXHIBIT CWELLS FARGO
VISA Account Number Ending in 1864
Statement Billing Period 1a/1ei2014 10 OYISI2014
Paga Tod
Balance Summary
Pravious Balance $0.00 | 24-Hour Customer Service: 4-800-642-4720
= Payments $0.00 | TTY for Henting/Speech impaired: 1-800-419-2265
= Other Credit $0.00 | Quisids the US Galt Collect: 1-825-825-7600
+ Gash Advances | sop. | Wale Forme Olive: —
+ Purchases, Salince Transters & 85,000.00
‘Cts Chanyes:* i Send General inquiries To:
+ Fees Charged : $0.00 | PO Bax 10347, Das Maines IA, $0308-0087
+ interest Charged $0.00
«= Now Balance $5,000.00
Total Credit Limit $10,000 Total Available Crodit $5,000
Payment Information
‘New Balance + $5,000.00 Send Payments To:
. ‘$e000 PO. Bex 30088, Los Angelos CA, 90090-0086
Payman(Que Dey = + ovmenots

Late Payment Warning: It we to not receive your Miritmum Paymant by 02/08/2014, you may have ta pay a late lee up to $35.

Ninienum Payment Warning: If you make enly the minimum payment @ach period, you will Bay mace in irterast and it will eke you fonger to pay off your
balance. For example:

ityou make no additional charges using | You will pay off the New Balance shown on Aad you will end up paying an
this card and each month you pay ... ‘thi istaternent fn about ‘estimated total of ..
‘Only the mininum payment 21 yeane $9,518
$168 ‘A years
{(Savinge of $3,527)
if you would ie Informaton shoul credit ‘Services, reler to www.usdo].cowusteabapcpalccdeice_approved.him or call
4-877-288-2108,

Important Information

$0 - $50.00 WILL BE DEDUCTED FROM YOUR ACCOUNT AND CREDITED
AS YOUR AUTOMATIC PAYMENT ON O2fia/t¢, THE AUTOMATIC.
PAYMENT AMOUNT WILL. BE REDUCED SY ALL PAYMENTS POSTED ON OR.
BEFORE THIS DATE.

Wells Fargo Rewards® Program Summary.

Rewards Balance us of: 12/91/2013 805

The Rewards Balence is for Rewards 1D 60003212725.
This balance may be inclusive of other contributing Rewards accounts. For up4o-date Rewards Balance information, or more ways
to earn and redeem your rewards, visit MyWellsFargoRewards.com or call 1-877-517-1358.

Transactions
Trans Post Reference Humber Description Credits Charges
Purchases, Balance Transfers & Other Charges
Teed Ware4 2448108BS81BYS7YD_ AMIR H MOZAPFARIAN SAN FRANCISCO CA. NIT) DB 5,000.00
TOTAL PURCHASES, BALANCE TRANSFERS & OTHER CHARGES FOR THIS PERIOD =z /$T pay men $8,000.06
Fees Charged
TOTAL FEES CHARGED FOR THIS PERIOD $0.00
NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION ABOUT YOUR ACCOUNT Continued

Pace ot S 168 SEES zoe C766 oIDRSSDS raze

sam

eone vee 2 Fe Asens 6EXHIBIT Dan het ee

poner a +. auTopay ison
MLMONCTON, DE.
qeese-stz See Your Aexturt ;
Mantages below
tor Guin.

wm nex corte “AUTOPAY 1S G0

JOHN J

aa 1M Lota Moye
FO 80x ee,
PALATING A, 80094-4014

SOOOAGO 2H ZOIRZELEL TILA?

f kana ge your account onde: ‘Suro Beier Medio:
eedon? Bi eo camsmanizaca S Ree. cae

Ss Lot earning: we do fe necaive yer rin
1200767 wa do fot receive your 1m paytnent
Purchases ee Wes cen tne guava Aa tir woe per gins ba tone eat
Cash Advarces yor APR bp mjc is 9 mast Heresy APR
Balence Trersiers: woo
Ovarcratts oud sm ean ani: te me a gar
Fean Charged $30.00 ech ere. yaul py tar h nest an Rw abe youianger
goog Ba yea Batson, Fer examples
Neew Biter manera
yea make nd | You wl ay off the | And you wil ano vo
Opening Ctonog Dow avmorta-carers | user naman using | balance shown on | poviwg-an aahened
‘Comettt Lien 34.000 ‘Wis card and each ‘Wha tear io tomato.
a bs ssng92 |_ ment you pay. WO
Chan Acooes Line sa3000 [Only Ine minewam a ysan sane
Ayatebis tor Caan 330,902 payment
Prats Ouse Amount $9.00 nz ‘Syeare sat
Batamce aver pie Croc Lint $009. Bavings=S6.845)
Ih you would ithe inbanetion Roost cracit counseling wardces, call
$E8-FO7-2085.,
peti ee

‘past AutoP ayant for $12,087.47 wel be éeauraed ron Your accent and erwin on you due date reels cay W pour the dave tae
wea Granny cs Hatin i yaurmoeew payrert port your cvedate hat amour wal be ceduthd bem the AuiaPaycant Noun,
‘denied abewe,

+ 154) PHYS? eared on all purchases 12098
+ Boras polit fro URiegte Rewards 2Ape e
+4 10% Afinuel Bemus: Chane chactang seers ‘area
= Tot palnts avaiable for necienpicn e32ee

Gaur ANY ee
De ot
Teananction S Amount

vem 7d pay menir

RAE ER LT ES TEE TS

‘This Statement Is a a Facstmtte - | Not an original

ont, pecs AMA Bee ganrenegronecAzaaDEXHIBIT ELetter to Monica Nemec
November 21, 2016
Page 2 of 2

Not only would we expect you to have investigated instances of Mr. Nemec’s prior notice of the
store policy as his counsel but, as the recipient of the pearl necklace that Mr. Nemec bought on
December 11, 2013 from the store, there is little room for doubt that you are personally aware of
these prior purchases and the disclosures established by them. You are hereby advised that, to
the extent you elect to amend, as opposed to dismiss, the meritless claims asserted against my
client, we will not hesitate to pursue all remedies available for continued and further’
misrepresentations to the Court regarding the facts of this dispute, including those available
under California Code of Civil Procedure §128.5.

Third, Mr. Nemec’s claims for violation of California’s Consumer Legal Remedies Act §1750
and California Business and Professions Code §17200 necessarily fail because both rely on the
claim that Mozaffarian Fine Jewels’ refund and exchange policy is “unlawful” under other
statutes which, as is explained elsewhere, the Complaint fails to support. Tuck Beckstoffer Wines
LLC v. Ultimate Distribs., 682 F. Supp. 2d 1003, 1020 (N.D, Cal. 2010) (“{W]here a plaintiff
cannot state a claim under the ‘borrowed’ law, it cannot state a UCL claim either.”). Further,
Civil Code §1723 represents an acknowledgement that refund and exchange policies with a
window of less than seven days are permissible with notice and, therefore, cannot be deemed
“unfai