Business and Professions Code 17511.9 - Telemarketing Fraud in California

Business Code 17511.9 BPC is the California statute that makes it a crime for a person to commit telemarketing fraud.

“Telemarketing fraud” is a type of California criminal fraud and it occurs when a person uses a deceitful or fraudulent business scheme or act to sell something.

Examples of illegal acts under this statute are:

  • Nicholas calls thousands of people a day and informs them that their computers have been infected with a virus, but for $50, he can correct the problem with special software (although he has no software).
  • Kim, as an employee of a company, makes cold calls and tries to sell insurance to callers by saying, misleadingly, that their car insurance is about to expire.
  • Justin calls potential “customers” and tells them he can enroll them in an overseas lottery opportunity every week for a small fee, but he has no intent to enroll them.

Defenses

Luckily, there are several legal defenses that a person can raise if accused of a crime under Business and Professions Code 17511.9. These include showing that an accused party:

  • was not a salesperson;
  • did not commit a fraudulent act; and/or,
  • was arrested after an unlawful search or seizure.

Penalties

A violation of BPC 17511.9 is a wobbler offense under California law. This means it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a fine of $10,000 for each unlawful transaction.

If charged as a felony, the offense is punishable by:

  • imprisonment in the county jail for up to three years; and/or,
  • a fine of $10,000 for each unlawful transaction.

Our California criminal defense attorneys will highlight the following in this article:

telemarketing fraud california
“Telemarketing fraud” is a type of California criminal fraud and it occurs when a person uses a deceitful or fraudulent business scheme or act to sell something.

1. What is the legal definition of telemarketing fraud?

California Business and Professions Code 17511.9 BPC is the California statute that makes it a crime for a person to engage in telemarketing fraud.

A prosecutor must prove three elements in order to show that a defendant is guilty of “telemarketing fraud.” These are:

  1. the defendant was a salesperson, agent or representative of a seller, or an independent contractor;
  2. and the defendant used a device or scheme, over the telephone, in connection with an offer to sell something;
  3. or the defendant willfully, directly or indirectly engaged in an act or business practice, over the telephone, that operated as a fraud or deceit in connection with an offer to sell something.1

A “fraud” occurs when:

  • a person commits an act that results in an unfair or undeserved benefit for himself, and
  • the act causes harm or loss to another person.

2. Are there legal defenses if accused under BPC 17511.9?

A person accused under Business and Professions Code 17511.9 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an experienced criminal defense attorney to get the most effective defense.

Three common defenses to BPC 17511.9 accusations are:

  1. not a salesperson;
  2. no fraudulent act or plan; and/or,
  3. unlawful search or seizure.

2.1. Not a salesperson

Please recall that the first element a prosecutor must prove under BPC 17511.9 is that the defendant acted as a salesperson, or as an agent of a seller. Therefore, a solid legal defense is for an accused to show that, while he may have made telephone calls to people, he was not trying to sell anything. Perhaps, for example, the defendant was merely making calls to perform market research.

2.2. No fraudulent act or plan

Please also recall that a party has to engage in some type of deceitful or fraudulent scheme to be guilty under this code section. This means that it is a completely valid defense for an accused to show that, even though he made telephone calls to sell a product, he did not commit a fraudulent act.

2.3. Unlawful search or seizure

The Fourth Amendment to the U.S. Constitution declares that we have the right to be free from unreasonable “searches and seizures” by law enforcement. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

The Fourth Amendment's rule against unreasonable search and seizures means that police may not search a person or his property unless one of the following is true:

  1. they have obtained a valid search warrant from a judge, or
  2. the search falls within one of a number of exceptions to the warrant requirement recognized by federal and California courts.2
man behind bars
A violation of this law can result in a large fine and/or jail time.

3. Penalties, punishment, and sentencing

A violation of Business and Professions Code 17511.9 is a wobbler offense under California law. This means it can be charged as either a misdemeanor or a felony depending on:

  • the facts of the case; and/or,
  • the criminal history of the defendant.

If charged as a misdemeanor, the crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a fine of $10,000 for each unlawful transaction.3

In lieu of imprisonment, a judge has the discretion to impose misdemeanor probation, or “summary” or “informal” probation.

If charged as a felony, the offense is punishable by:

  • imprisonment in the county jail for up to three years; and/or,
  • a fine of $10,000 for each unlawful transaction.4

In lieu of imprisonment, a judge has the discretion to impose felony, or formal, probation.

4. Related offenses

There are four crimes related to telemarketing fraud. These are:

  1. false advertising – BPC 17500;
  2. annoying phone calls – PC 653(m); and,
  3. public nuisance – PC 372 and 373(a); and,
  4. spam/unsolicited emails – BPC 17529.5.

4.1. False advertising – BPC 17500

California Business and Professions Code 17500 BPC is the California statute that makes false advertising a crime.

A prosecutor must prove two things to show that a person or company is guilty of “false advertising.” These are:

  1. the person or company made a false or misleading statement in connection with a service, product or the sale of a service/product/property; and,
  2. the person or company knew, or should have known, that the statement was false or misleading.5

A statement is considered false or misleading if members of the public are likely to be deceived.6 The determination of whether or not a public member is deceived is based upon the facts of a given case.7

A person or company that violates California Business and Professions Code 17500 is guilty of a misdemeanor.8 The offense is punishable by:

  • Imprisonment in the county jail for up to six months; and/or,
  • A fine not to exceed $2,500.9

A person or company guilty of false advertisement may also face a civil lawsuit and/or an injunction.

4.2. Annoying phone calls – PC 653(m)

Per California Penal Code 653(m), a person commits a crime in California if he makes an annoying phone call.

Under PC 653(m), an “annoying phone call” is one that is:

  1. obscene, threatening or one of a series of repeated calls, and
  2. made with the intent to harass or annoy the person being called.10

This code section also applies to annoying:

  • emails,
  • text messages, and
  • letters sent by fax.11

A violation of PC 653(m) is charged as a misdemeanor. The offense is punishable by:

  • imprisonment in the county jail for up to six months; and/or,
  • a maximum fine of $1,000.12

4.3. Public nuisance – PC 372 and 373(a)

A public nuisance is a crime under California Penal Code 372 and 373(a).

In particular, it is a crime under PC 372 and 373(a) if a person does any of the following:

  1. maintains or commits a “public nuisance;”
  2. willfully fails to perform any legal duty to remove a public nuisance;13 or
  3. maintains, permits or allows a public nuisance to exist on property that he owns or controls.14

The legal definition of a “public nuisance” in California is anything that:

  1. is injurious to health, indecent, offensive to the senses or an obstruction to the free use of property; and
  2. interferes with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons.15

A violation of PC 372 and 373(a) is charged as a misdemeanor. The offense is punishable by:

  • imprisonment in the county jail for up to six months; and/or,
  • a fine of up to $1,200.16

4.4. Spam & Unsolicited Emails – BPC 17529.5

Business and Professions Code 17529.5 BPC is the California statute that makes it a crime for a person to send certain unsolicited emails.17

In order to successfully convict a defendant under this statute, a prosecutor must prove the following elements:

  • the defendant advertised in a commercial e-mail ad,
  • the ad was sent from California or to a California e-mail address,
  • the e-mail contained a third party's domain name without the permission of that party,
  • or, the e-mail contained false or forged header information,
  • or, the email had a misleading subject line.18

A violation of BPC 17529.5 is charged as a misdemeanor and is punishable by:

  • imprisonment in the county jail for up to six months, and/or
  • a maximum fine of $1,000.19

Were you accused of telemarketing fraud in California? Call us for help…

california telemarketing fraud attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under Business and Professions Code 17511.9 BPC, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


Legal References:

  1. California Business and Professions Code 17511.9 BPC. This code section reads as follows: “Except as provided in Section 17511.8 , any person, including, but not limited to, the seller, a salesperson, agent or representative of the seller, or an independent contractor, who willfully violates any provision of this article or who directly or indirectly employs any device, scheme, or artifice to deceive in connection with the offer or sale by any telephonic seller, or who willfully, directly, or indirectly, engages in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with a sale by any telephonic seller shall, upon conviction, be punished as follows:

    (a) By a fine not exceeding ten thousand dollars ($10,000) for each unlawful transaction.

    (b) By imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in a county jail for not more than one year.

    (c) By both the fine and imprisonment specified in subdivisions (a) and (b).”

  2. E.g., Riley v. California (2014) 134 S.Ct. 2473, 2482. (“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”).

  3. California Business and Professions Code 17511.9 BPC.

  4. See same. See also California Penal Code 1170(h).

  5. California Business and Professions Code 17500 BPC. See also, Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172 (2002).

  6. People v. Toomey, 157 Cal. App. 3d 1 (1984).

  7. See same.

  8. California Business and Professions Code 17500 BPC.

  9. See same.

  10. California Penal Code 653(m) PC.

  11. See same.

  12. California Penal Code 19 PC.

  13. California Penal Code 372 PC.

  14. California Penal Code 373(a) PC.

  15. California Penal Code 370 PC.

  16. California Penal Code 19 PC. See also California Penal Code 1202.51 PC.

  17. California Business and Professions Code 17529.5 BPC. This code section states: “It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:

    (1) The e-mail advertisement contains or is accompanied by a third-party's domain name without the permission of the third party.

    (2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.

    (3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”

  18. See same.

  19. California Business and Professions Code 17529.5c BPC.

Free attorney consultations...

The attorneys at Shouse Law Group bring more than 100 years collective experience fighting for individuals. We're ready to fight for you. Call us 24 hours a day, 365 days a year at 855-LAW-FIRM for a free case evaluation.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

To contact us, please select your state:

Call us 24/7 (855) 396-0370