BILL NUMBER: AB 238 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 29, 2011
AMENDED IN ASSEMBLY APRIL 4, 2011
INTRODUCED BY Assembly Member Huber
( Coauthor: Senator Fuller
)
FEBRUARY 3, 2011
An act to amend Section 2031.240 of the Code of Civil
Procedure, relating to discovery. An act to amend
Sections 2983 and 2983.1 of the Civil Code, relating to motor vehicle
sales, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 238, as amended, Huber. Civil procedure: discovery:
objections. Motor vehicle conditional sale contracts.
The Rees-Levering Motor Vehicle Sales and Finance Act regulates
motor vehicle conditional sale contracts, and, among other things,
requires a person selling or leasing a motor vehicle under a
conditional sale contract to disclose certain information to a buyer.
A violation of those disclosure requirements makes a conditional
sale contract unenforceable, except as specified.
This bill would provide that a conditional sale contract shall not
be made unenforceable for a violation of specified disclosure
requirements, relating to the amount financed, regarding the amount
of governmental fees, including vehicle license fees, registration
fees, and California tire fees.
This bill would declare that it is to take effect immediately as
an urgency statute.
The Civil Discovery Act permits a party to a civil action to
obtain discovery, as specified, by inspecting documents, tangible
things, and land or other property in the possession of any other
party to the action. The act provides for procedures that must be
followed when the responding party objects to part or all of an
inspection demand.
This bill would require the responding party, when that party
objects to a demand on the basis of privilege or work product, to
provide sufficient factual information in its response for other
parties to evaluate the merits of that claim, including, if
necessary, a privilege log.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no yes .
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares as
follows:
(a) The Rees-Levering Motor Vehicle Sales and Finance Act (Chapter
2b (commencing with Section 2981) of Title 14 of Part 4 of Division
3 of the Civil Code) sets forth a statutory scheme to regulate the
retail sale and financing of motor vehicles. The act contains
detailed disclosure requirements intended to protect the consuming
public and includes provisions that render a conditional sale
contract unenforceable if any of those disclosure requirements are
violated, regardless of the nature of the disclosure violation or any
consumer harm.
(b) It is the intent of the Legislature in enacting this act to
limit the contract unenforceability remedies of the Rees-Levering
Motor Vehicle Sales and Finance Act for certain disclosure violations
that involve fees paid by a vehicle purchaser to the state. It is
not the intent of the Legislature in enacting this act to relieve a
seller from making full and accurate contract disclosures, or to
limit other consumer remedies for any disclosure violation.
SEC. 2. Section 2983 of the Civil Code
is amended to read:
2983. If (a) Except
as provided in subdivision (b), if the seller, except as the
result of an accidental or bona fide error in computation, violates
any provision of Section 2981.9, or of subdivision (a), (j), or (k)
of Section 2982, the conditional sale contract shall not be
enforceable, except by a bona fide purchaser, assignee or pledgee for
value or until after the violation is corrected as provided in
Section 2984, and , if the violation is not corrected
, the buyer may recover from the seller the total amount paid,
pursuant to the terms of the contract, by the buyer to the seller or
his assignee. The amount recoverable for property traded in as all
or part of the downpayment shall be equal to the agreed cash value of
such property as the value appears on the conditional sale contract
or the fair market value of such property as of the time the contract
is made, whichever is greater.
(b) A conditional sale contract executed or entered into on or
after January 1, 2012, shall not be made unenforceable solely because
of a violation by the seller of paragraph (2) or (5) of subdivision
(a) of Section 2982. In addition to any other remedies that may be
available, the buyer is entitled to any actual damages sustained as a
result of a violation of those provisions. Nothing in this
subdivision affects any legal rights, claims, or remedies otherwise
available under law.
SEC. 3. Section 2983.1 of the Civil
Code is amended to read:
2983.1. If (a)
Except as provided in subdivision (e), if the seller or holder
of a conditional sale contract, except as the result of an accidental
or bona fide error of computation, violates any provision of
subdivision l )
subdivision (l) of Section 2982, the buyer may recover from
such the person three times the amount
of any finance charge paid to that person.
If
(b) If a holder acquires a
conditional sale contract without actual knowledge of the violation
by the seller of Section 2981.9 , or of subdivision (a),
(j), or (k) of Section 2982, the contract shall be valid and
enforceable by such the holder except
(unless the violation is corrected as provided in Section
2984) the buyer is excused from payment of the unpaid
finance charge , unless the violation is corrected as provided
in Section 2984 .
If
(c) If a holder acquires a
conditional sale contract with knowledge of such
a violation of Section 2981.9 , or of
subdivision (a), (j), or (k) of Section 2982, the conditional sale
contract shall not be enforceable except by a bona fide purchaser,
assignee , or pledgee for value , or unless the
violation is corrected as provided in Section 2984, and ,
if the violation is not corrected , the buyer may recover
the amounts specified in Section 2983 from the person to
whom payment was made the amounts specified in Section 2983
.
When
(d) When a conditional sale
contract is not enforceable under Section 2983 or 2983. 1, the buyer
may elect to retain the motor vehicle and continue the contract in
force , or may, with reasonable diligence, elect to
rescind the contract and return the motor vehicle. The value of the
motor vehicle so returned shall be credited as
restitution by the buyer without any decrease which
that results from the passage of time in the
cash price of the motor vehicle as such the
price appears on the conditional sale contract.
(e) A conditional sale contract executed or entered into on or
after January 1, 2012, shall not be made unenforceable, and the buyer
shall not be excused from payment of any finance charge, solely
because of a violation by the seller of paragraph (2) or (5) of
subdivision (a) of Section 2982. In addition to any other remedies
that may be available, the buyer is entitled to any actual damages
sustained as a result of a violation of those provisions. Nothing in
this subdivision affects any legal rights, claims, or remedies
otherwise available under law.
SEC. 4. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to provide, as soon as possible, that the contract
unenforceability remedies in the Rees-Levering Motor Vehicle Sales
and Finance Act should not apply to fees paid by a vehicle purchaser
to the state, while preserving all other available remedies, it is
necessary that this act take effect immediately.
SECTION 1. Section 2031.240 of the Code of
Civil Procedure is amended to read:
2031.240. (a) If only part of an item or category of item in a
demand for inspection, copying, testing, or sampling is
objectionable, the response shall contain a statement of compliance,
or a representation of inability to comply with respect to the
remainder of that item or category.
(b) If the responding party objects to the demand for inspection,
copying, testing, or sampling of an item or category of item, the
response shall do both of the following:
(1) Identify with particularity any document, tangible thing,
land, or electronically stored information falling within any
category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the specific ground for,
the objection. If an objection is based on a claim of privilege, the
particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work
product under Chapter 4 (commencing with Section 2018.010), that
claim shall be expressly asserted.
(c) If an objection is based on a claim of privilege or a claim
that the information sought is protected work product, the response
shall provide sufficient factual information for other parties to
evaluate the merits of that claim, including, if necessary, a
privilege log.