V. Operating Without a Permit

The facts show that, pursuant to a July 13, 2004, finding of probable cause of the San Francisco Superior Court, all phone numbers listed in the SBC Smart Yellow Pages advertisements for Lucky Moving were disconnected for being used in connection with unlicensed household goods carrier operations. The facts also show that the telephone company mistakenly reactivated two of the Lucky Moving phone numbers in response to a request by Zhi Yuan Zhang, an individual doing business as Express Moving Company.

It is undisputed that Respondent answered and offered rate quotes in response to calls to the previously disconnected phone numbers listed in the Lucky Moving advertisements. However, the totality of the evidence shows that Respondent's offers of moving services by Lucky Moving were made on behalf of Express Moving Company, not by Respondent operating as a separate household goods carrier.

By the time Respondent entered into the proposed settlement, she had stopped operating Lucky Moving Company, and had sold the company's moving trucks to Zhang. Having sold the moving trucks, Respondent no longer owned the necessary assets for operating a moving company. Since that time, Respondent has assisted Zhang in the operation of his business by answering calls inquiring after moving services. Respondent testified that the phone numbers previously used by Lucky Moving and answered by her in the sting calls had been transferred to Express Moving; this assertion is corroborated by the fact that Zhang, not Respondent, requested and obtained the reactivation of the Lucky Moving phone numbers from SBC. Respondent, under the title of office manager, signed a contract to place an advertisement for Express Moving in the SBC Smart Yellow Pages. Respondent sometimes receives direct cash payment from Zhang for her services.

Based on the totality of this evidence, we find that Respondent ceased her operation of Lucky Moving and that her further activity in connection with the previously disconnected Lucky Moving phone numbers was on behalf of Express Moving. Accordingly, we do not find that Respondent operated as a household goods carrier without a permit in violation of § 5313.5 since entering into the settlement.

CPSD argues that Respondent's representation that she ceased to operate as Lucky Moving is contradicted by the fact that she answered calls to phone numbers listed in Lucky Moving advertisements, confirmed that the calling party had reached Lucky Moving, and under those circumstances provided a rate quote. CPSD points to the additional evidence that Respondent stated, in response to a sting call described in the declaration of CPSD declarant Burgie Burgess, that Lucky Moving was her company. These facts do not demonstrate that Respondent operated Lucky Moving as a household goods carrier independent of Express Moving.

The Lucky Moving advertisements at issue are in the April 2004 editions of the SBC Smart Yellow Pages; they were placed before Respondent entered into the proposed settlement, and necessarily continue to exist for a time regardless of whether Lucky Moving continued in operation. Respondent's confirmation that a caller, having dialed a phone number listed in the Lucky Moving yellow pages advertisement, had indeed reached Lucky Moving, and her offer of a rate quote are consistent with the activity of an employee and does not demonstrate ownership or independent operation as a household goods carrier.

We reject CPSD's argument that Respondent admitted ownership of Lucky Moving in the sting call by CPSD staff. The only evidence in the Burgess declaration that addresses the issue of Lucky Moving's ownership is the statement that Respondent answered "yes" in response to Burgess asking "if she has several moving businesses." Although the question and answer were in reference to Lucky Moving, Liu's Moving, and Express Moving, neither CPSD nor the record suggests that this proves ownership of Liu's Moving or Express Moving. We do not find that this statement proves ownership of Lucky Moving any more than we find that it proves ownership of Liu's Moving or Express Moving.

CPSD points to the Burgess declaration, which states that Respondent told him that Lucky Moving, Express Moving and Liu's Moving are different companies with different rates and that the rate quote she had provided earlier would only apply to Lucky Moving, as proof that Respondent continued to operate Lucky Moving. Respondent denies having made such a representation. Under the circumstances and the totality of the evidence, including Respondent's lack of proficiency in English, we decline to rely on this contradictory evidence.

CPSD points out that Respondent admits she did not sell the company known as Lucky Moving, but only its assets. CPSD argues that this confirms that Lucky Moving is still in existence and therefore liable for violations. We are not persuaded that, having done business as Lucky Moving, Respondent is therefore liable for violations of Pub. Util. Code § 5313.5 by other persons in the name of Lucky Moving. However, as discussed below, Respondent is liable under Pub. Util. Code § 5313 for abetting Zhang's operation as Lucky Moving.