TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________ OPINION : : No. 97-1208 of :

: March 17, 1998 DANIEL E. LUNGREN : Attorney General :

: GREGORY L. GONOT : Deputy Attorney General :

:

______________________________________________________________________

THE HONORABLE MARTHA M. ESCUTI A, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question:

When the retail seller of a hearing aid fails to adjust or replace the device so that it is specifically fit for the particularneeds of the buyer and the trans action is deemed rescinded, may the seller retain a portion of the total amount paid on the basis th at such part payment was for fitting the device or other ancillary service or fo r one or more of the component parts that the seller refuses to take back?

CONCLUSION

When the retail seller of a hearing aid fails to adjust or replace the device so that it is specifically fit for the particularneeds of the buyer and the trans action is deemed rescinded, the seller may not retain any portion of the total amo unt paid on the basis that such part payment was for fitting the device or other ancillary service or for one or more of the component parts that the seller refuses to take back.

ANALYSIS

The question presented concerns the extent of the refund which must be provided to one who returns a hearing aid pursuan t to Civil Code section 1793.02. Footnote No. 1 Contained in the Song-Beverly Consumer Warranty Act (§§ 1790-1793.2; "Act"), section 1793.02 provides in pertinent part as follows:"(a) All new and used assistive devices sold atretail in this state shall be accompanied by the retail seller's written wa rranty which shall contain the fo llowing language: `This assistive device is warranted to be specifica lly fit for the particular needs of you, the buyer. If the device is not specifically fit for your particular needs, it may be returned to the seller within 30 days of the date of actual receipt by you or co mpletion of fitting by the seller, whichever occurs later. If you return the device, the seller will either adjust or replace the device or pr omptly refund the total amount paid. This warranty does not affect the protections and remedies you have under other laws.' In lieu of the words `30 days' the retail seller may specify any longer period.

"(b) The language prescribed in subdivision (a) shall app ear on the first page of the warranty in at least 10-p oint bold type. The warranty shall be delivered to the buyer at the time of the sale of the device.

"(c) If the buyer returns the device within the period specifie d in the written warranty, the seller shall, without charge and within a reasonable time, adjust the device, or, if appropriate, replace it with a device that is specifically fit for the particular needs of the buyer. If the seller does not adjust or replace the devi ce so that it is specifically fit for the particular needs of the buyer, the seller shall promptly re fund to the buyer the total amount paid, the transaction shall be deemed rescinded, and the seller shall promp tly return to the buyer all payments and any assistive device or other consideration exchanged as part of the transact ion and shall promptly cancel or cause to be canceled all contracts, in struments, and security agreements executed by the buyer in connection with the sale. When a sale is rescinde d under this section, no charge, penalty, or other fee may be imposed in conne ction with the purchase , fitting, financing, or return of the device.

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Section 1792.2, subdivision (b), provides that "[e]very sale of an assi stive device sold at retail in this state shall be accompanied by the retail se ller's implied warranty that the device is specifically fit for the particularneeds of the buyer." A hearing ai d is an "assistive device" (§ 1791, subd. (s)).

We are asked to determine whether the sell er of a hearing aid may, upon recision of the transaction, retain any portion of the total amount paid by claiming that part of the payment was for fitting the device or other ancillary service or for one or more component parts that the seller refuses to take back. We conclude that all paymen ts made in connection w ith the purchase of the hearing aid must be refunded.

We are informed that, in addition to the am ount charged for the hearing aid itself, other separately stated charges are often set forth in the purchase agreement. These additional charges are for services, such as administering a hearing test or making an ear mold, that are necessarily performed in dispensing the hearing aid to the consumer. Such incidental charges are variously denominated as a "laboratory fee," "impression fee," an "instruction, delivery and counseling fee," or "return fee." May the am ounts paid for these separately stated items be retained by the seller?In arriving at our determinati on we are guided by well-establis hed principles of statutory construction. "When interpreting a statute our pr imary task is to determine the Legislature's intent." ( Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826.) "To determine the intent of legi slation, we first consu lt the words themselves, giving them their usual a nd ordinary meaning." ( DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "Every word, phrase, and sentence in a stat ute should, if possible, be given significance. [Citation.]" ( Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 276-277.) "[C]ourts are no more at liberty to add provision s to what is therein declared in definite language than they are to disregard any of its expr ess provisions. [Citation.]" ( Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097.) A stat ute should be construed to "defeat subterfuges, expediencies, or evasions employe d to continue the mischief sought to be remedied by the statute . . . or any attempt to accomplish by i ndirection what the statute forbids." ( Freedland v. Greco (1955) 45 Cal.2d 462, 468.) Finally, we note that "t he Act is manifestly a remedial measure, intended for the protection of the consumer; it sh ould be given a construction calculated to bring its benefits into action." ( Kwan v. Mercedes-Benz of North America (1994) 23 Cal.App.4th, 174, 184.)

Looking first to the words of the statute, we obs erve that a refund is to be made "[i]f the seller does not adjust or replace th e device so that it is specifically fit for th e particular needs of the buyer." (§ 1793.02, subd. (c).) The refund is to be "the total amount pai d," and "the seller shall promptly return to the buyer all payments . . . ." ( Ibid .) "[T]he transaction shall be deemed rescinded," and the seller "shall pr omptly cancel . . . all contract s . . . executed by the buyer in connection with the sale." ( Ibid .) Finally, "[w]hen a sale is rescinded under this section, no charge, penalty, or other fee may be imposed in connection with the purc hase, fitting, financing, or return of the device. " ( Ibid ; italics added.) The "assistive de vice" includes "any component or part thereof or accessory th ereto." (§ 1791, subd. (p).)

The language chosen by the Legislatur e in section 1793.02 is unambiguous and encompasses the fees and charges in question that ar e separately listed by hearing aid sellers. The fact that these fees and charges are made to a ppear independent of the "basic" charge for the hearing aid does not support the view that they may be retained by the dispenser when the sale is deemed rescinded pursuant to the terms of the statute. Such recision is allowed because the hearing aid does not meet the requirement unde r the implied warranty that the device "be specifically fit for the particularneeds of . . . the buyer." (§ 1793.02, subd. (a).) The dispenser is made to bear the economic risk in the trans action since "the buyer is relying on the skill and judgment of the seller to select and furn ish suitable goods. . . ." (§ 1791.1, subd. (b).)

Any item made in the course of preparing the hearing aid or any service rendered in that regard is part of the overall cost of ensuring that the consumer receives a hearing aid that conforms to his or her particular needs. Th e dispenser's skill and judgment are critical in determining which of those items or services is required in order to satisfy the particular needs of the consumer.

We find no indication in the releva nt statutes that the Legislature contemplated exclusion of the items or services in question from the "tot al amount paid" that must be refunded to the consumer when the purchase agreement is deemed rescinded pursu ant to section 1793.02,subdivision (c). We have examined the legislative histories of the relevantstatutes and find them to be consistent with the unambiguous stat utory language used by the Legislature.

We therefore conclude that when the retail seller of a hearing aid fails to adjust or replace the device so that it is specifically fit for the particular needs of the buyer and the transaction is deemed rescinded, the seller may not retain any po rtion of the total amount paid by claiming that part of the payment was for fitting the device or other ancillary service or for one or more of the component parts that the sell er refuses to take back.

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Footnote No. 1 All references hereafter to the Civil Code are by section number only.