Weatherall Aluminum Products Co. v. Scott

Opinion

HASTINGS, J.

This is an appeal from a municipal court order granting defendants’ motion for summary judgment. It is before us upon transfer from the appellate department of the Los Angeles Superior Court. (Rule 62 (a), Cal. Rules of Court.)

The case involves interpretation of the scope and meaning of the term “home solicitation contract” in section 1689.5 et seq. of the Civil Code. The facts, briefly stated, are these: Defendants obtained plaintiff’s name and telephone number from the yellow pages of the telephone directory.

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Defendants telephoned plaintiff who sent a representative to their home on February 5, 1974. The representative showed defendants a sample of an insulated wall system. After some conversation, an agreement was reached between defendants and plaintiff’s representative for the installation of such a system in defendants’ residence. Defendants signed a contract at their residence and gave plaintiff’s representative a $100 deposit, leaving a balance due of $1,650. The written contract did not contain a notice of the buyer’s right to cancel such as is required in a home solicitation contract. (Civ. Code, § 1689.7.)

Plaintiff installed the wall system on February 20, 1974. Defendants were dissatisfied with the work. No accommodation was reached, and defendants failed to pay the balance due. Plaintiff brought the present action on March 26, 1975. On May 12, 1975, after consulting counsel, defendants mailed a written notice of cancellation to plaintiff. On May 14, 1975, defendants answered plaintiff’s complaint and filed a cross-complaint. Thereafter, defendants moved for summary judgment on the basis of their having cancelled the contract.

If the contract was a home solicitation contract within the meaning of Civil Code section 1689.5, then, the notification required by section 1689.7, subdivisions (a) and (c) not having been given, defendants retained a right to cancel. (Civ. Code, § 1689.7, subd. (e).) The trial court ruled, as a matter of law, that the contract, having been signed at defendants’ home, was a home solicitation contract within the meaning of the statute, and granted defendants’ motion for summary judgment.