VI. Abetting a Household Goods Carrier in Violating the Household Goods Carrier Act

We do not find that Respondent violated Pub. Util. Code § 5311(a) or Pub. Util. Code § 5313³ by abetting Express Moving Company or Liu's Moving in operating as household goods carriers without a permit, as the record does not support a finding that either of these companies is operating without a permit. We do, however, find that Respondent violated the statute by abetting Zhang and Express Moving Company in holding itself out as the unlicensed Lucky Moving Company.

A. Call to Express Moving Company

CPSD argues that Respondent violated Pub. Util. Code § 5311(a) by offering to provide a household goods move on behalf of Express Moving Company. Pub. Util. Code §§ 5311(a) and 5313 make every officer, director, agent, or employee of a household goods carrier liable for violations of the Household Goods Carrier Act and Commission regulations, regardless of whether the agent or employee commits the violation herself or abets the household goods carrier in committing the violation.

CPSD points to evidence of a sting call to the phone number listed in an SBC Smart Yellow Pages advertisement for Express Moving Company. The evidence shows that CPSD declarant Burgess called Express Moving Company and spoke to Respondent with respect to a possible household goods move, and that Respondent provided a rate quote for the move.

This evidence is not in dispute. Respondent admits that she regularly answers, and offers rate quotes in response to, calls to the phone numbers listed in the Express Moving advertisement. However, CPSD does not explain, and we cannot discern, how answering calls to Express Moving's advertised phone numbers is a violation of the Household Goods Carrier Act or Commission regulations.

Nothing in the record suggests that Express Moving is operating without a permit. To the contrary, CPSD refers, in its petition to set aside submission, to "Zhiyuan Zhang, dba as [sic] Express Movers, a licensed carrier." Nothing in the record suggests that the Express Moving advertisement is illegal. Nothing in the record suggests that the phone number listed in the advertisement was illegal. CPSD, in describing this alleged violation, makes reference to an individual named Bing Yuan, and indicates that she is associated with Express Moving. However, we do not find evidence of any such association (to the contrary, Respondent testifies there is no such association); nor does CPSD state how such an association might put Express Moving in violation of the Household Goods Carrier Act or Commission regulation.

In sum, we do not find that Respondent's offer to provide household goods carrier services in response to a phone call to Express Moving violated §§ 5311(a) and 5313.

B. Call to Liu's Moving

CPSD argues that Respondent violated § 5311(a) by offering to provide a household goods move on behalf of Peng Liu, an individual doing business as Liu's Moving. As evidence of this violation, CPSD refers to Burgess's declaration that he called the phone number listed in an SBC Smart Yellow Pages advertisement for Liu's Moving and spoke to Respondent, who confirmed that he had reached Liu's Moving as advertised in the yellow pages. Respondent admits that, since entering into the proposed settlement, she has answered a few phone calls to Liu's Moving, although she has not received payment for doing so.

CPSD asserts that Liu is an unlicensed carrier. CPSD did not offer any evidence of this assertion in its petition to set aside submission or at evidentiary hearing. In combing the formal record of this proceeding, however, we find, attached to an August 25, 2005, motion by CPSD, a declaration by Robert E. DeGroot, Senior Transportation Representative for CPSD, stating that Peng Liu and Liu's Moving do not have operating authority. We decline to rely on this evidence on both factual and procedural grounds.

As a factual matter, the evidence is stale. Seven months passed between the date of this declaration and the hearing to take evidence on this alleged violation. It is possible that Liu's Moving obtained operating authority in the intervening period. Indeed, Respondent testified that Liu told her that he had passed a test to qualify for an operating permit, and that he was awaiting further documents. We do not find on this record that Liu lacks authority to operate as a household goods carrier.

CPSD argues that Respondent was on notice that Liu did not have a license because he was a co-defendant in the San Francisco Superior Court proceeding where Respondent was charged with operating without a license. We reject this argument. First of all, the Superior Court complaint naming Liu as co-defendant was filed in April 2004. Second, the November 2, 2004, final judgment in that proceeding dismisses Peng Liu. Thus this evidence is both stale and inconclusive.

We also decline to consider this evidence on procedural grounds. CPSD's motion, to which this evidence is attached, sought to add Liu doing business as Liu's Moving as a respondent to this proceeding. The November 1, 2004, scoping ruling of the assigned commissioner and administrative law judge denied the motion. It would be unfair and prejudicial to charge the Respondent with responding to these facts alleged against Liu, in a denied motion to add him as a respondent to this case and to account for the allegations against him, as supporting CPSD's further, and much later, allegations against Respondent.

We nevertheless warn Respondent that, had CPSD met its burden of proving that Liu lacks operating authority, we would have found her actions on his behalf to be in violation of §§ 5311(a) and 5313. We also warn Respondent that, if Liu does not have operating authority, any further such actions will be in violation of §§ 5311(a) and 5313.

In conclusion, we do not find on this record that Respondent's offer to provide household goods carrier services in response to a phone call to Liu's Moving violated §§ 5311(a) or 5313.

C. Calls to Lucky Moving

We find that Respondent violated §§ 5311(a) and 5313 by abetting Zhang and Express Moving in offering moving services in response to calls to previously disconnected phone numbers advertised for Lucky Moving Company. Zhang requested and obtained the reactivation of phone numbers listed in the Lucky Moving yellow pages advertisements that had been disconnected pursuant to court order. Respondent answered calls to the previously disconnected Lucky Moving phone numbers and offered moving services in response to them.

Respondent's testimony that she clarified to the callers that Lucky Moving is now Express Moving is contradicted by Burgess's declaration that Respondent told him that Lucky Moving, Express Moving, and Liu's Moving are different companies. However, even assuming the facts to be as stated by Respondent, her actions violated §§ 5311(a) and 5313. By reactivating the disconnected phone numbers in the Lucky Moving advertisements, Zhang held himself out as Lucky Moving in violation of § 5313.5. By taking calls made to the previously disconnected phone numbers on behalf of Zhang and Express Moving, Respondent abetted Zhang in that violation.