A wave of complaints over the past year against the propane business DeCarli’s has spurred customers who formerly settled a class action lawsuit against the company to press for the enforcement of settlement terms.
The new motion, filed in Marin Superior Court on Friday by Susan Deixler, Scott Yancy and Luigi Venezia on behalf of all affected customers, says the company is demanding customers pay invoices up to eight years old without explaining how it arrived at the costs. That violates a settlement agreement from 2011 requiring bills to be current, they contend.
The plaintiffs, represented by the law firm Chavez and Gertler LLP and Legal Aid of Marin, also accused the business of potentially overcharging for propane. A court date has been set for Oct. 4.
Lawyers for DeCarli’s, which is formally known as Petaluma Butane Distributors, stopped responding to the plaintiffs’ lawyers’ requests for an explanation, prompting the legal action, the motion says.
“I’m troubled when a company enters into a settlement but simply does not abide by the agreement,” said Nance Becker, an attorney with Chavez and Gertler. “One of the terms was that the defendant shall become current in invoices and billing…They’re still sending bills from before the settlement agreement, and people are extremely distressed.
Vince DeMartini, an attorney for DeCarli’s, said he could not yet comment. He only received the motion and declarations in the mail on Tuesday, and had not had time to review the filings or discuss the matter with his client.
Yet a form letter from DeCarli’s recently informed customers of a new computerized billing system—a potential explanation for a new surge of bills. “Due to the hard work and devotion of our staff, we can proudly say we have conquered our major battles and are completely up-to-date with billing,” the letter reads. “Because of these efforts, we are now fully able to take DeCarli’s into the 21st century. We have implemented an entirely new computerized system tailored to our industry and the needs of our customers.”
One customer from Point Reyes Station, Joan Thornton—who recently got a $2,000 bill she says is inaccurate—received the letter. But the billing, she observed, “seems worse now.”
In 2009, Ms. Deixler, Mr. Yancy and Mr. Venezia filed a class action suit against DeCarli’s. The case largely revolved around how the company priced propane—particularly with metered customers, or those who share a tank and are charged by a meter measuring their use. (Other customers are charged by how many gallons of propane is put in a tank during a delivery.)
The plaintiffs alleged that the business was using the wrong conversion factor in measuring the amount used, leading to overcharges. The suit also aimed to force DeCarli’s to keep bills current and charges easily explained.
The parties entered into a court-approved settlement agreement in 2011. Eighty-four customers were paid a total of more than $34,000, the amount they had been overcharged between Jan. 30, 2005 and July 13, 2010, according to an independent accountant.
The settlement also listed a number of provisions for DeCarli’s to follow. For instance, it said the business would “become current in providing invoices and billing statements to its customers” soon after the settlement was finalized, and that the bills would come with “all documentation required for the customer to substantiate new charges.”
Per the settlement, being current means sending bills to metered customers within 45 days of when charges were incurred.
Because DeCarli’s was a couple of years behind in billing, customers at the time had the option of paying big “catch up” bills over two years.
But roughly a year and a half ago, the plaintiffs’ new motion says, DeCarli’s began mailing “a new series of ‘catch up’ bills that, for the first time, demanded additional payment for propane allegedly delivered many years ago”—including from before the settlement, dating back to 2008—“without any explanation of how the charges were calculated.”
More recently, DeCarli’s began sending a wave of bills in June that included a “balance forward” on many statements, also for years-old propane deliveries, with a notification that the money was due in 10 days.
The suit calls into question the “balance forward” requests because they do not include the per-gallon charge for propane—which can change daily—or the dates of all charges. (The business is supposed to charge the rate “in effect at the time the charges incurred,” the motion says.)
Ms. Becker, the attorney, said she wrote to DeCarli’s three times, asking them to either stop sending old bills or to talk about the issue. According to her, after an initial letter in September, a DeCarli’s lawyer called her with promises to respond but never did, even after she sent two more letters.
The motion claims that California’s statute of limitations prohibits the business from collecting on debts more than four years old.
DeCarli’s should also be unable to collect on more recent debts, the plaintiffs argue. The business’s “demand that customers pay amounts incurred within the four-year period, but more than 45 days previously, is likewise unfair and unlawful because it violates the [settlement agreement] and order and the equitable doctrine of laches,” the motion says.
Some customers have resolved their issues outside the court. A mediator with the Marin County District Attorney’s Office, Kristina Warcholski, said she helped formally mediate a few disputes between customers and DeCarli’s in the past year. She advised another eight or so who contacted the office about their rights, such as how far back a business can bill.
Customers who go back to the business with this information have told her that strategy has worked, she said.
Ms. Warcholski also advises people to try to figure out if they do owe some amount and, if so, to figure out how much and to offer that to DeCarli’s. “That has been a pretty winning way to handle it,” she said.
Though Ms. Warcholski has also suggested that people switch providers if they’re having problems—one other business, McPhail Fuel Company, offers propane in the area—many tell her they cannot afford to do so because they believe they need to purchase a new tank and even install an expensive concrete pad. (A McPhail’s employee, Greg Draper, said new customers rarely need to buy a new tank. The cost of switching can range widely, he said, but generally speaking, if a homeowner has all the necessary equipment, the switch is free. If a concrete pad, anchor strapping and earthquake valve are needed, the company has a subsidy program under which customers pay $350 for the switch.)
The customers who filed declarations in the suit say they did not have success in trying to work out their problems with DeCarli’s.
Ms. Deixler, a plaintiff who lives in Inverness Park, said in her declaration that she paid every bill the business sent since the settlement. But in January 2015, she received a bill for propane delivery from 2008; in June, she received a “balance forward” bill for a total of $1,197.58.
“The statement was not accompanied by any attachments, the dates the deliveries billed for were allegedly made, or any other information documenting the ‘balance,’” she wrote in her declaration. “I owe them nothing, because I pay my bill in its entirety as soon as I receive it.”
A DeCarli’s employee told her the business would look into the matter, but she never heard back. “Because I believe this billing violated the settlement agreement and that I do not owe additional money, I have not paid it,” she said.
Ms. Deixler, who works for West Marin Senior Services, added that many of her elderly clients have also recently received old bills. They fear losing propane service or causing problems with their credit ratings if they do not pay them, she said.
Ms. Thornton, the Point Reyes Station resident who filed a declaration, said she paid $2,000 to DeCarli’s—even though she did not believe she owed it—for fear of losing propane, using the money from the recent sale of two of her paintings.
“I thought, ‘Well, I’ll pay it and we’ll work it out when I get a hold of them,’” she told the Light. But despite a request for an itemized bill, she never received one.
A couple from Petaluma had their gas supply cut off in February, according to one declaration. The customer said she and her husband paid all bills on time when they received them. In early 2016, however, they received a bill for $6,744.56 for service between 2007 and 2015, which they disputed.
Nancy Cook, a Dillon Beach resident and customer since she bought a house in the village in 1997, says she stopped receiving bills in 2009. She did not start receiving them again until January 2015, when she was sent a bill for $949.07 for 2008 and 2009 deliveries, according to her declaration. Her most recent bill, from June, included a “balance forward” bill asking for $3,768.81.
Her bill, and many others, came with a notice that DeCarli’s will soon be allowing online payments.
The motion asks the court to stop DeCarli’s from sending out bills for propane deliveries or tank rental fees more than 45 days old, and to refund customers who paid what they called “stale demands.”