BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 833
                                                                  Page 1

          Date of Hearing:  May 12, 2009

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                   AB 833 (John A. Perez) - As Amended: May 6, 2009
                                           
                               As Proposed to be Amended
                                           
          SUBJECT  :  RENTAL PASSENGER VEHICLES: CONTRACTS

           KEY ISSUE  :  SHOULD THE LEGISLATURE ADJUST THE RIGHTS AND  
          RESPONSIBILITIES OF CAR RENTAL COMPANIES AND THEIR RENTERS?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.   

                                      SYNOPSIS
          
          This bill is sponsored Enterprise Rent-A-Car Company to change  
          the statute governing consumer liability when rented vehicles or  
          their components are stolen, lost or vandalized.  Car rental  
          companies no longer have the evidentiary burden to establish  
          customer liability when they seek to make the renter responsible  
          for the theft of the vehicle.  The companies would also be  
          entitled to make customers responsible for the costs incurred  
          when keys or electronic "key fobs" are lost.  Finally, the bill  
          would double the limit on customer liability from $500 to $1000  
          when a vehicle is vandalized.  The rental companies state that  
          the bill is a reasonable attempt to clarify some provisions of  
          the law governing car rental transactions in California and to  
          conform the law to reflect the economic realities today.

           SUMMARY  :  Revises consumer rights and responsibilities regarding  
          automobile rental.  Specifically,  this bill  :  

          1)Allows car rental companies to shift the burden of proof from  
            the rental company to the renter to establish whether there is  
            clear and convincing evidence that the renter or authorized  
            driver failed to exercise ordinary care while in possession of  
            the vehicle if the vehicle is stolen, making the renter  
            responsible for the theft up to the fair market vale of the  
            vehicle.

          2)Authorizes a car rental company to make the renter responsible  
            for the replacement cost of the vehicle ignition key or remote  








                                                                  AB 833
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            keyless entry system if the renter fails to return them, as  
            well as actual towing, storage, or impound costs incurred by  
            the car rental company associated with the renter's failure to  
            return the ignition key or remote keyless entry system. 

          3)Allows car rental companies to increase the limit on the  
            renter's responsibility for physical damage to the vehicle  
            resulting from vandalism (unrelated to theft) from $500 to  
            $1,000.

           EXISTING LAW  : 

          1)Authorizes a rental company and a renter to agree that the  
            renter will be responsible for, among other things, loss due  
            to theft of the rented vehicle up to its fair market value,  
            provided that the rental company establishes by clear and  
            convincing evidence that the renter or the authorized driver  
            failed to exercise ordinary care while in the possession of  
            the vehicle.  (Civil Code section 1936(b)(2).)  

          2)Authorizes the rental company and the renter to agree that the  
            renter will be responsible for physical damage to the rented  
            vehicle up to a total of $500 resulting from vandalism  
            unrelated to theft of the vehicle, and for an administrative  
            charge, as specified.  (Civil Code section 1936 (b)(4).)

           COMMENTS  :  In support of the bill, the sponsor writes: "The  
          purpose of AB 833 is to clarify some provisions of Section 1936  
          of the Civil Code which governs passenger vehicle transactions  
          in California and to modernize other provisions to reflect the  
          cost of vehicles and the realities of the car rental market  
          today.  The changes contained in AB 833 are largely technical or  
          minor in nature, involving either updating sections that have  
          not been amended since passage of the original law in 1988 or  
          clarifying the protections and applicability of the law.  AB 833  
          is a reasonable attempt to clarify some provisions of the law  
          governing car rental transactions in California and to conform  
          the law to reflect the economic realities today."

           Changes Evidentiary Burden Regarding Consumer's Responsibility  
          When Vehicle Is Lost Due to Theft.   Currently, car rental  
          companies have the obligation to "establish by clear and  
          convincing evidence" that a renter failed to exercise ordinary  
          care if the company wishes to make the renter responsible for  
          loss of the vehicle due to theft.  This bill would change that  








                                                                  AB 833
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          law by deleting the car rental company's obligation to  
          "establish" the renter's lack of care.  Supporters contend that  
          "use of the term 'establishes' ? is vague and implies that the  
          car rental company is before a court when in fact it is making  
          an internal judgment as to whether there is sufficient 'clear  
          and convincing evidence' to hold the renter liable for theft."   
          Supporters state that deleting the requirement that the rental  
          car company establish the renter's lack of care will "not  
          substantively change its meaning or a car rental company's  
          duties and obligations [but] simplify the provision and clarify  
          the evidentiary burden."  

          It does seem apparent that the car rental company makes the  
          initial determination whether to seek to hold the consumer  
          liable for theft of the vehicle, as supporters state.  But it  
          should be conceded that these issues may be disputed, and may in  
          fact have to be resolved by a court or a private arbitrator.  By  
          deleting the rental company's obligation to "establish" the  
          evidence, and replacing the phrase "rental company establishes"  
          with the phrase "there is," [such evidence] it seems plain that  
          the effect would be to relieve the company of this evidentiary  
          duty.  If the car rental company no longer has the obligation to  
          establish the evidence, but the requirement that there be such  
          evidence remains, the natural inference likely to be drawn by a  
          court is that the Legislature intended that the renter now have  
          this evidentiary burden. 

           Allows Car Rental Companies to Make Renters Responsible for  
          Costs Associated With Lost Keys And Keyless Systems.   In  
          addition, the bill authorizes a car rental company to make the  
          renter responsible for the replacement cost of the vehicle  
          ignition key or remote keyless entry system if the renter fails  
          to return the ignition key or remote keyless entry system, as  
          well as actual towing, storage, or impound costs incurred by the  
          car rental company associated with the renter's failure to  
          return the ignition key or remote keyless entry system.  A  
          rental company would be required to mitigate these costs.

          As supporters note, current law does not specifically provide  
          that a renter can be held responsible for the cost of key  
          replacement if he/she loses the ignition key to the rental  
          vehicle. According to supporters, "[s]ince it is not  
          specifically stated, renters have argued that they are not  
          responsible for the costs associated with the loss of a  
          vehicle's key.  There is a growing trend for new vehicles to  








                                                                  AB 833
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          have a 'keyless' ignition system, which includes an electronic  
          key fob.  Key fobs are more difficult and expensive for a car  
          rental company to replace than standard keys."

           Increased Consumer Liability For Vandalism Damage.   Finally, the  
          bill increases the renter's responsibility for vandalism damage  
          from $500 to $1,000.  Supporters state, "The vandalism limit has  
          not been changed since originally enacted in 1988.  Since then,  
          the inflation rate has been approximately 66%; repair and parts  
          have risen dramatically more due primarily to fewer body parts  
          on a car and the complexity of electrical and computer systems."
           
          Author's Proposed Amendment.   In order to correct a drafting  
          error by which prior provisions of the bill were incompletely  
          eliminated, the author proposes to amend the bill to delete  
          lines 16-17 on page 6.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Enterprise Rent-A-Car Co.
          Alamo Rent-A-Car, Inc.
          National Car Rental, Inc.

           Opposition (As Most Recently Amended) 
           
          None on file
           
          Analysis Prepared by  :  Kevin G. Baker / JUD. / (916) 319-2334