Opinion
NOT TO BE PUBLISHED
Super. Ct. No. BC314448 Carolyn B. Kuhl, Judge ORIGINAL PROCEEDING; application for writ of mandate. Writ granted.
Billet, Kaplan & Dawley, Jerome S. Billet, Gregory A. Dawley; and Harold J. Tomin for Petitioner.
No appearance for Respondent.
Fulbright & Jaworski, James R. Evans, Jr.; Mariscal, Weeks, McIntyre & Friedlander and Gary L. Birnbaum for Real Parties in Interest.
ZELON, J.
Leonard Aron seeks a writ of mandate compelling the trial court to vacate its order granting a motion for judgment on the pleadings in favor of U-Haul Company of California and U-Haul International, Inc. We issued an alternative writ requiring the trial court to vacate its order granting the motion for judgment on the pleadings or to show cause why a peremptory writ of mandate should not issue. The trial court declined to vacate its order, and we now issue a writ of mandate ordering the trial court to vacate its ruling on the motion and to enter a new order denying the motion.
FACTUAL AND PROCEDURAL BACKGROUND
Aron sued U-Haul, alleging that its refueling practices violated the California Consumers Legal Remedies Act, Civil Code section 1750 et seq. (“CRLA”) and the California Unfair Competition Law, Business and Professions Code section 17200 et seq. (“UCL”). The trial court granted U-Haul’s motion for judgment on the pleadings, and he appealed. In Aron v. U-Haul Company of California (2006) 143 Cal.App.4th 796 (Aron), we reversed the judgment on the basis that Aron had alleged facts sufficient to state a cause of action under the UCL and section 1770, subdivision (a)(5) of the CLRA. Specifically, we held that Aron had made sufficient allegations of an unlawful act to survive a motion for judgment on the pleadings where he alleged that U-Haul’s use of fuel gauges to measure fuel for commercial sale is illegal because the gauges are incapable of measuring fuel in the required measurement units. (Id. at p. 805.)
Unless otherwise indicated, all further statutory references are to the Business and Professions Code.
Although our decision in Aron, supra, 143 Cal.App.4th 796 was limited to a consideration of the legal sufficiency of allegations concerning refueling practices for rented motortrucks, a coalition of car rental companies petitioned the Legislature to enact further laws concerning the use of fuel gauges for determining refueling charges in rented vehicles. These efforts culminated in the 2007 enactment of section 13800, which provides, in relevant part, as follows: “Notwithstanding any other provision of this division, a rental vehicle’s fuel gauge installed by the vehicle’s manufacturer may be used in a rental transaction by a rental company to calculate an optional charge for fueling when any of the following occurs: [¶] (1) The customer could have avoided incurring the charge by returning the rental vehicle with the same amount of fuel as was in the fuel tank at the commencement of the rental. [¶] (2) The customer chose to purchase the amount of fuel inside the fuel tank at the commencement of the rental.” (§13800, subd. (a).)
U-Haul again moved for judgment on the pleadings, this time asserting that the new law entitled it to judgment in its favor. The trial court granted the motion for judgment on the pleadings with respect to the first cause of action of the complaint on the basis of its belief that this court “would defer to the Legislature, would find section 13800 persuasive, and would hold that, prior to the enactment of section 13800, Division 5 of the Business and Professions Code (addressing weights and measures) did not regulate the use of rental vehicle fuel gauges as a measuring instrument in rental vehicle transactions.” In the alternative the court struck the allegations from Aron’s complaint that asserted that it was unlawful for U-Haul to charge customers for fuel based on estimates using the rental truck fuel gauge. Pursuant to Code of Civil Procedure section 166.1, the trial court indicated its belief that there was a controlling question of law as to which there were substantial grounds for difference of opinion, appellate resolution of which might materially advance the conclusion of the litigation. The trial court stayed the matter pending the resolution of Aron’s petition to this court.
Aron filed a petition for writ of mandate asking that this court compel the trial court to vacate its ruling and to enter a new ruling denying the motion for judgment on the pleadings. We issued an alternative writ instructing the trial court either to vacate its order and to replace it with an order denying the motion or to show cause why it should not be ordered to do so. The trial court declined to vacate its order.
DISCUSSION
I. Applicability of Section 13800
The relevant portion of section 13800 provides as follows: “Notwithstanding any other provision of this division, a rental vehicle’s fuel gauge installed by the vehicle’s manufacturer may be used in a rental transaction by a rental company to calculate an optional charge for fueling when any of the following occurs: [¶] (1) The customer could have avoided incurring the charge by returning the rental vehicle with the same amount of fuel as was in the fuel tank at the commencement of the rental. [¶] (2) The customer chose to purchase the amount of fuel inside the fuel tank at the commencement of the rental.” (§13800, subd. (a).)
Section 13800 does not define the terms “rental vehicle,” and “rental company,” nor does it provide that the terms should be understood with reference to any other statute. Aron argues that the plain wording of the statute, as well as the legislative history of the provision, demonstrates that the Legislature intended the provision to apply only to passenger car rental companies and not to motortruck providers such as U-Haul. Specifically, Aron contends that for the purposes of determining the meaning of the phrase “rental company” in section 13800, we should import the definition set forth in Civil Code section 1936, subdivision (a)(1)—which defines a “rental company” as a person or entity in the business of renting passenger vehicles to the public—and therefore, we should conclude that U-Haul, a truck rental company, is not a rental company within the meaning of section 13800.
“This question is one of statutory interpretation. When a court attempts to discern the meaning of a statute, ‘it is well settled that we must look first to the words of the statute, “because they generally provide the most reliable indicator of legislative intent.” [Citation.] If the statutory language is clear and unambiguous our inquiry ends. “If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.” [Citations.] In reading statutes, we are mindful that words are to be given their plain and commonsense meaning.’ [Citation.]” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 639-640.)
Here, the statutory language is clear and unambiguous. The statute may not precisely define its terms nor refer us to any other statute that defines them, but we are not faced with a situation in which the words are terms of art or can only be understood by reference to another statute. Accordingly, we give the words their plain and commonsense meaning: a rental vehicle is a vehicle that is rented, and a rental company in the context of this statute is a company that rents out vehicles in the course of its business.
Aron contends that such an understanding impermissibly renders the words “rental company” surplusage (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387) but this is not the case. Understanding a rental company to be a company that rents out vehicles does not create surplus language in the statute, it identifies the entities impacted by the law. The statute mentions rental companies because it specifically authorizes them to use the fuel gauge for optional refueling charges under the specific circumstances set forth in the statute. If an entity renting out a vehicle cannot be characterized as a rental company, it is not covered by the provisions of this statute. Here, of course, it is unquestionably true that U-Haul is a company that rents out vehicles.
Aron argues that because of our obligation to harmonize statutes relating to the same subject, both internally and with each other (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), we are obligated to look to the definition of that term in Civil Code section 1936, subdivision (a)(1). But there is no lack of harmony here that needs to be remedied by limiting the scope of the words in this statute to the scope of the terms set forth in another statute. “‘If the statutory language is clear and unambiguous our inquiry ends.’” (Meyer v. Sprint Spectrum L.P., supra, 45 Cal.4th at p. 640.)
The trial court recognized that interpreting the words of section 13800 in their ordinary sense would include rental trucks as well as rental passenger vehicles, and that U-Haul falls within the definition of a “rental company” under section 13800. We similarly conclude that based on the plain meaning of the words in the statute, the statute applies to the rental of vehicles, including motortrucks rented by U-Haul.
II. Whether Section 13800 Changed or Clarified Existing Law
The next question we address is whether section 13800 is properly applied to transactions preceding its enactment. In deciding the statute’s application, “we must explore whether the statute changed or merely clarified existing law. A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment. [Citation.] However, a statute might not apply retroactively when it substantially changes the legal consequences of past actions, or upsets expectations based in prior law.” (Carter v. California Department of Veterans Affairs (2006) 38 Cal.4th 914, 922 (Carter).)
The trial court concluded that section 13800 was a clarification of, rather than a change in, existing law. We cannot wholly agree. With respect to the rental of passenger vehicles, the law was a clarification of existing law—but the law went further, and provided for the first time that the use of dashboard fuel gauges for determining refueling charges was permissible for rental companies’ rentals of all rental vehicles with such gauges. This, we conclude, was a change in the law.
A. The Legislature’s Intent
In determining whether a new provision of law changed or clarified existing law, the degree of consideration due legislative statements on this subject depends on what actions the courts have previously taken. When the Supreme Court has finally and definitively interpreted a statute, the Legislature lacks the power to then declare that a later amendment merely declared existing law. (Carter, supra, 38 Cal.4th at p. 922.) When “the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration.” (McClung v. Employment Development Department (2004) 34 Cal.4th 467, 473 (McClung).) Here, the Supreme Court has not finally and conclusively interpreted the weights and measures statutes such that the refueling practice at issue here has been determined to be illegal with respect to the rental of motortrucks. We therefore give a legislative declaration as to the purpose of this law “‘due consideration.’” (Carter, at p. 922.)
While “the Legislature’s expressed views on the prior import of its statutes are entitled to due consideration,” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244 (Western Security)) this is only possible when the Legislature expresses its views in a discernible way. Here, the courts look to provisions in the new law that declare the intent of the Legislature. The Legislature is not reticent about making such statements when it deems them appropriate. For instance, in the provision considered in Western Security, the bill in question provided, “‘It is the intent of the Legislature in enacting Sections 2 and 4 of this act to confirm the independent nature of the letter of credit engagement and to abrogate the holding in [the Court of Appeal’s earlier opinion in this case], that presentment of a draft under a letter of credit issued in connection with a real property secured loan following foreclosure violates Section 580d of the Code of Civil Procedure and constitutes a ‘fraud... or other defect not apparent on the face of the documents’ under paragraph (b) of subdivision (2) of Section 5114 of the Commercial Code... [¶] The Legislature also intends to confirm the expectation of the parties to a contract that underlies a letter of credit, that the beneficiary will have available the value of the real estate collateral and the benefit of the letter of credit without regard to the order in which the beneficiary may resort to either.’ [Citation.]” (Id. at p. 245, footnote omitted.) Similarly, in the legislation considered in Carter, supra, 38 Cal.4th 914, the Legislature had provided in the bill, “It is the intent of the Legislature in enacting this act to construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in Salazar v. Diversified Paratransit, Inc. (2002) 103 Cal.App.4th 131.” (Stats. 2003, ch. 671, § 2.) Here, however, the Legislature made no such declaration as to the purpose of the law when it enacted section 13800: neither the codified language nor any uncodified language in the enacted bill spoke to the intent of the Legislature in enacting the law.
U-Haul contends, and the trial court concluded, that the Legislative Counsel’s Digest declared the intent of the Legislature in enacting this law. That Digest stated, “Existing law does not regulate the use of rental vehicle fuel gauges as a measuring instrument in rental vehicle transactions.” (Stats. 2007, ch. 667, § 1.) The trial court took this assertion to “state[] the view of existing law on which the legislative amendment is premised,” and concluded that section 13800 “affirms this view of existing law” because the statute “permits (i.e., refrains from precluding or regulating), use of a motor vehicle’s fuel gauge in a rental transaction.”
While in neither Carter, supra, 38 Cal.4th 914 nor Western Security, supra, 15 Cal.4th 232 did the Supreme Court require that the Legislature’s intent be declared explicitly in the enacted bill in order for us to consider it, the Supreme Court did not indicate thatany statement found in the legislative files can be amplified into a declaration of legislative intent. Here the Supreme Court evidently envisioned that the declarations of legislative intent would in fact be statements by the Legislature: “Thus, where a statute provides that it clarifies or declares existing law,” the Supreme Court wrote in Western Security, then “‘[i]t is obvious that such a provision is indicative of a legislative intent that the amendment apply to all existing causes of action from the date of its enactment’” and the intent must be given effect unless a constitutional obligation overrides it. (Western Security, at p. 244, italics added.) While the Legislative Counsel’s Digest is a persuasive and often useful portion of the legislative history, it is not binding (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1170), and we cannot say that it constitutes the “Legislature’s expressed views on the prior import of its statutes” (Western Security, at p. 244), particularly where, as here, the quoted passage merely articulates the absence of legislation on the specific subject of the use of rental vehicle dashboard fuel gauges as a measure for refueling charges.
Even if we were to accept the proposition that the Legislative Counsel’s Digest was a legislative declaration that the new law merely clarified existing law, the content of the statement prevents us from construing it as evidence of legislative intent to clarify rather than to change existing law. The Legislative Counsel’s statement cannot be understood as declaring a legislative intent to clarifythe true meaning of existing law because the statement asserted merely that existing law did not regulate the practice in question. We understand that statement to mean that no law specifically prohibited or permitted the practice in question. Where there previously existed no law on a subject, legislation subsequently enacted to fill that void necessarily works a change in the law. The alternative view would require us to accept the nonsensical view that a new law can clarify the true meaning of a law that did not previously exist. “A legislative declaration that an amendment merely clarified existing law ‘cannot be given an obviously absurd effect, and the court cannot accept the Legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms.’ [Citation.]” (Carter, supra, 38 Cal.4th at pp. 922-923.)
The Legislative Counsel clearly understood that weights and measures law pertained to this matter. The original idea of Senate Bill No. 970 was to amend the weights and measures law to exempt dashboard fuel gauges, and when the bill was introduced, the Legislative Counsel recognized in its Digest that “Existing law provides that the Secretary of Food and Agriculture by rules and regulations shall provide for submission for approval of types or designs of measuring instruments or devices used for commercial purposes and shall issue certificates of approval for those he or she finds to meet specified provisions of law and the tolerance and specifications thereunder. Existing law provides that it is unlawful to sell or use an unapproved measuring instrument or device for commercial purposes. Existing law defines a measuring instrument for purposes of these provisions. [¶] This bill would provide that a measuring instrument does not include a fuel gauge installed in a motor vehicle by the motor vehicle manufacturer.” Ultimately, the Legislature elected instead to add a separate section to the Business and Professions Code specifically concerning rental vehicles (section 13800); we fail to understand how that change leads to the Legislative Counsel’s apparent conclusion that existing law did not regulate this practice in light of this discussion of the previously applicable law.
U-Haul contends that other portions of the legislative history demonstrate that the Legislature intended to clarify rather than change the law, but our consideration of the “surrounding circumstances” (Western Security, supra, 15 Cal.4th at p. 243) does not indicate that section 13800 was merely a clarification of the true meaning of existing law. Certainly we find numerous references to “clarifying” the law and maintaining the “status quo” in legislative history documents, and U-Haul has identified many, if not all, of them in its briefing. Throughout the legislative process this bill was described as clarifying existing law insofar as it provided that the already-authorized rental car refueling charge practices could be based on the measurement of fuel by the dashboard fuel gauge, but the legislative history is devoid of discussion of the impact on this law with respect to rental vehicles other than passenger cars. For instance, the Senate Bill No. 970 “fact sheet” from the bill’s author described the subject of the bill as “rental car refueling” and the issue giving rise to the bill as the fact that the Aron case, “involving truck rental charges and practices, which are much different than those of car rental companies, has raised questions about the refueling practices of car rental companies.” The fact sheet further stated, “This bill is needed to allow car rental companies to continue to offer consumers a full range of refueling options.” Similarly, the Senate Republican Office of Policy’s report on Senate Bill No. 970 stated that “[t]his bill allows consumers to continue to exercise a variety of choices in how they pay for refueling their rental car.” With the exception of a discussion of our earlier decision in this case, the remainder of the report was dedicated to discussing rental car refueling practices. In the same vein is the report of the Assembly Committee on Business and Professions on Senate Bill No. 970, which describes as existing law both the weights and measures provisions and Civil Code section 1936, subdivision (n)(2) without making any distinction between rental passenger vehicles and other rental vehicles with respect to the application of Civil Code section 1936, subdivision (n)(2). The report’s discussion of the bill concerns rental cars. The sponsors are described as rental car companies. The need for the legislation is couched entirely in terms of rental cars and options for paying for the fuel used during a car rental. While the Aron case is mentioned and distinguished because practices with respect to rental trucks are alleged to differ from those for rental cars, Aron is described as prompting the rental car companies to believe that the law needs to be clarified as to the legality of their practice: “The issue raised in the U-Haul case that prompted this bill concerns using a vehicle fuel gauge to estimate the amount of fuel used during the vehicle rental. The case argued that the practice was illegal under California Weights and Measures Law, which requires any measuring device used for commercial purposes to meet specified requirements, including measuring volume in liters, gallons, or fractions thereof. The sponsors [identified as a coalition of rental car companies] state that vehicle fuel gauges have not traditionally been viewed as measuring devices under the Weights and Measures Law, and therefore believe that the law should be clarified regarding these provisions.”
At no point in the legislative history was the full ambit of this legislation to include rental vehicles other than rental cars directly discussed. It is not clear that the Legislature recognized that section 13800 exceeded the scope of Civil Code section 1936, subdivision (n)(2) and worked a change in the law in this regard. Even if the legislative history is entitled to consideration on the question of clarification or change, in light of the absence of any indication that the Legislature was aware of the full scope of its enactment and the legal changes it effected, we cannot find the statements in the legislative files that refer to maintaining the status quo or clarifying the law with respect to this refueling practice to be meaningful indicators that the Legislature intended to clarify the true meaning of the law with respect to rental vehicles other than passenger cars. Under these circumstances, we find the legislative history of limited value in determining whether section 13800 changed or clarified existing law concerning motortrucks. (See Western Security, supra, 15 Cal.4th at p. 244 [the Legislature’s “expressed views on the prior import of its statutes are entitled to due consideration, and we cannot disregard them,” but even “a legislative declaration of an existing statute’s meaning is neither binding nor conclusive in construing the statute”].)
B. Examination of Existing Law
We examine the pre-existing law to determine whether section 13800 clarified or changed the law regarding the acceptability of the use of a dashboard fuel gauge for calculating refueling charge for rented vehicles. In order to determine whether the enactment of section 13800 clarified existing law or substantially changed it, we must determine whether the law as it existed prior to section 13800 “could not have been properly construed” to prohibit the use of dashboard fuel gauges to measure fuel for the purpose of assessing a refueling charge on the return of a rented vehicle. (Carter, supra, 38 Cal.4th at p. 924.)
Prior to the enactment of section 13800, existing law provided that in addition to other authorized charges, a company that rented passenger vehicles was permitted to “charge for an item or service provided in connection with a particular rental transaction if the renter could have avoided incurring the charge by choosing not to obtain or utilize the optional item or service. Items and services for which the rental company may impose an additional charge include, but are not limited to... charges for refueling the vehicle at the conclusion of the rental transaction in the event the renter did not return the vehicle with as much fuel as was in the fuel tank at the beginning of the rental.” (Civ. Code, § 1936, subd. (n)(2).) Although it makes no specific reference to the use of a dashboard fuel gauge to measure fuel for the purpose of this refueling charge, this statute has been viewed as providing a safe harbor for this method of measuring fuel for the purposes of companies renting passenger vehicles; certainly it authorized charges for refueling passenger vehicles returned with less fuel than provided at the start of the rental. Whatever the scope of the safe harbor provided by Civil Code section 1936, subdivision (n)(2), that provision did not, and does not,extend to companies such as U-Haul that rent motortrucks. (Aron, supra, 143 Cal.App.4th at pp. 803-804.)
We qualify this statement because Civil Code section 1936, subdivision (n)(2) permitted refueling charges for rental passenger vehicles returned with less fuel in the tank than at the start of the rental, but it did not specifically authorize the measurement of fuel for those charges by the use of the dashboard gauge. This provision has been characterized as a “safe harbor” from the reach of the UCL (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1154), but the scope of that harbor was not firmly established by the case law. In Schnall, the Court of Appeal concluded that the Civil Code provision here (at that time numbered as section 1936, subdivision (m)(2)), precluded as a matter of law claims that the rental company’s fuel service charge was exorbitant and unreasonable and therefore violated the UCL. (Id. at pp. 1160-1161 [“We conclude that, by authorizing avoidable fuel service charges, Civil Code, section 1936 subdivision (m)(2) insulates the reasonableness of such charges from judicial scrutiny”].) The safe harbor provision, however, did not preclude allegations that the rental company employed the refueling practice in a deceptive and unfair way. The plaintiff had alleged that the rental company deceptively induced customers to incur refueling charges by scattering relevant information in different rental documents, failing to disclose information that would allow customers to evaluate their options, using two different rates to calculate fuel charges, and employing “needlessly complex language in the rental agreement” concerning the application of the rates. (Id. at pp. 1163-1166.) There, the Court of Appeal concluded that the safe harbor in Civil Code section 1936 did not apply to these allegedly unfair and deceptive practices. (Id. at p. 1170 [“Since Civil Code, section 1936 subdivision (m)(2) does not provide Hertz a safe harbor against the allegations that it confuses and misleads customers in violation of the ‘unfair’ and ‘fraud’ prongs of the UCL, these allegations sufficiently state a claim under the UCL”].) Schnall was followed by Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, which relied entirely on Schnall’s reasoning. We were unable to locate any California authority that would establish whether the challenge raised here would constitute a challenge to the reasonableness of the amount of the charges and thus falls within the safe harbor, or whether it would allege a distinct violation of the UCL that would not be covered by the safe harbor provisions of Civil Code section 1936, subdivision (n)(2). Our earlier decision in Aron, supra, 143 Cal.App.4th 796,did not answer this question. In that opinion we recognized two distinct issues: whether Civil Code section 1936, subdivision (n)(2) applied to U-Haul and whether it provided a safe harbor for this practice. (Aron, at p. 803.) Our conclusion that the statute did not apply to U-Haul ended the inquiry without requiring us to address the second question. Going forward, section 13800 puts to rest the question of the scope of the safe harbor by specifically authorizing the use of the dashboard fuel gauge for measuring fuel for refueling charges; but the state of the law with respect to this practice for rental cars was at least somewhat murky before the law was enacted.
With respect to passenger car rentals within the scope of Civil Code section 1936, section 13800 may be understood as a clarification of the true meaning of the law. The law previously provided that refueling charges could be imposed on such rentals, and this statute, while making material changes to the law, explicitly authorized a commonly-used method of calculating the refueling costs. The law made clear that the practice of using the dashboard fuel gauge for the already-endorsed purpose of determining whether a renter had returned a passenger vehicle with less fuel than it contained at the start of the rental was legal. Particularly in light of the Legislature having acted soon after our earlier decision in this matter(Carter, supra, 38 Cal.4th at p. 923), section 13800 may well have been a clarification of the law with respect to the rental of passenger vehicles.
But section 13800 was not limited to the rental passenger vehicles covered by Civil Code section 1936. As we have already discussed, section 13800 applies to all rental vehicles rented by a rental company. For motortrucks, which fall outside the safe harbor in Civil Code section 1936, subdivision (n)(2) (Aron, supra, 143 Cal.App.4th at p. 804), the laws applicable to the use of dashboard fuel gauges and measuring fuel for refueling charges prior to the enactment of section 13800 were the general laws concerning weights and measures. These provisions make clear that a fuel gauge is not a legally compliant device for measuring fuel for commercial purposes under California law.
Section 12500, subdivision (b) provides that a measuring instrument is any device, contrivance, apparatus, or instrument used, or designed to be used, for ascertaining measure. A dashboard fuel gauge falls within the scope of this provision, as it exists to measure the amount of fuel remaining in a gasoline tank. Measuring instruments must be approved by the Secretary of Food and Agriculture before they may be used for commercial purposes. (§§ 12500.5, 12003, 12500, subd. (e) [defining commercial purposes].) Moreover, section 12020 states, “It shall be unlawful for any person, by himself or through or for another, to use for commercial purposes any weight or measure or weighing, measuring or counting instrument, knowing it to be ‘incorrect’ as this term is defined in subdivision (d) of Section 12500.” Section 12500, subdivision (d) defines “incorrect” as “any instrument which fails to meet all of the requirements of Section 12107.” Section 12107 adopts federal requirements for commercial weighing and measuring; these are set forth in National Institute of Standards and Technology Handbook 44, “Specifications and Tolerances, and other Technical Requirements for Weighing and Measuring Devices,” commonly known as “Handbook 44.”
Handbook 44 provides that it applies to “commercial weighing and measuring equipment; that is, weights and measures and weighing and measuring devices commercially used or employed in establishing the size, quantity, extent, area, or measurement of quantities, things, produce, or articles for distribution or consumption, purchased, offered, or submitted for sale, hire, or award, or in computing any basic charge or payment for services rendered on the basis of weight or measure.” (Handbook 44, § 1.10, G-A.1. (a).) All weighing and measuring devices are to be “provided with indicating or recording elements appropriate in design and adequate in amount. Primary indications and recorded representations shall be clear, definite, accurate, and easily read under any conditions of normal operation of the device.” (Handbook 44, § 1.10, G-S.5.1.)
Handbook 44 may be accessed on the Internet at http://ts.nist.gov/WeightsAndMeasures/h44-07.cfm (accessed April 8, 2009.)
Section 3.30 of Handbook 44 concerns liquid-measuring devices. While the term “liquid-measuring device” is defined in an appendix to the handbook as “[a] mechanism or machine designed to measure and deliver liquid by definite volume,” (Handbook 44, Appendix D, entry for “liquid-measuring device”) the language of section 3.30 provides that that section applies to “devices used for the measurement of liquids, including liquid fuels and lubricants.” (Handbook 44, § 3.30, A.1. (a).) When used to ascertain fuel levels for the purpose of assessing refueling charges, a dashboard fuel gauge is a device used for the measurement of liquids and therefore falls within the scope of section 3.30. Section 3.30 provides that a liquid-measuring device “shall indicate... its deliveries in liters, gallons, quarts, pints, fluid ounces, or binary-submultiples... of the liter or gallon” (Handbook 44, § 3.30, S.1.2.), and it further requires that for retail motor-fuel measuring devices, “[d]eliveries shall be indicated and recorded, if the device is equipped to record, in liters or gallons and decimal subdivisions or fractional equivalents thereof.” (Handbook 44, § 3.30, S.1.2.1.)
Aron contends that under Handbook 44 and California law adopting its provisions, because dashboard fuel gauges are incapable of measuring in the units required, they may not legally be used for the sale of gasoline. U-Haul argues that section 3.30 of Handbook 44 does not apply to the use of a dashboard gasoline gauge to measure the fuel remaining in a tank because a dashboard gasoline gauge does not deliver any fuel, and clearly section 3.30 contemplates devices that both measure and deliver fuel. We acknowledge that in its totality, section 3.30 of Handbook 44 does appear to be directed at devices that both measure and dispense liquids (such as, for instance, a gasoline pump), and the parties have not directed us to any portion of Handbook 44 that more directly covers the measurement device used here.
However, the fact that U-Haul has divorced the two steps here—measurement and delivery of gasoline—does not mean that it is released from the obligations to deliver fuel using the specified standards of measure. Handbook 44 provides that when its provisions do not precisely match the equipment being considered, the standards of Handbook 44 shall nonetheless be followed when it is clearly appropriate to do so: “Insofar as they are clearly appropriate, the requirements and provisions of the General Code and of specific codes apply to equipment failing, by reason of special design or otherwise, to fall clearly within one of the particular equipment classes for which separate codes have been established. With respect to such equipment, code requirements and provisions shall be applied with due regard to the design, intended purpose, and conditions of use of the equipment.” (Handbook 44, § 1.10, G-A.3.) We understand this to mean that when equipment is created that does not precisely fit into the scope of existing weights and measurements standards in Handbook 44, the design, intended purpose, and conditions of use of that equipment is considered in determining whether to apply the Handbook’s standards as far as possible.
Considering the design, intended purpose, and conditions of use of the gasoline measurement system relied upon by U-Haul here, we conclude that the units of measurement requirements of Handbook 44, section 3.30 S.1.2. should be applied to the dashboard fuel gauge when it is used for the measurement of fuel for the purposes of a commercial sale of gasoline. Clearly the dashboard fuel gauge was never designed to be used with any precision for measuring the amount of fuel that has been dispensed or is remaining in a gasoline tank, and for that reason accuracy of measurement such as that provided by Handbook 44 has never been necessary for that device. But when a rental company converts the gasoline gauge to a purpose other than the purpose for which it was designed and uses it for what amounts to measuring fuel for sale, the standards of accuracy for the fuel gauge must be more like the standards of accuracy required for well-regulated, traditional fuel dispensing. If U-Haul wants to employ a commercial practice of using the gasoline tank and the dashboard gauge as a measurement system for commercial transactions in gasoline, as it does when it uses these items to gauge how much to charge in refueling costs, it must be prepared for that measurement system to be held to the standards promulgated to ensure measurement accuracy and reliability.
Any other result would be absurd. If U-Haul were to sell gasoline by a dispenser that measured the tank’s capacity by the dashboard gauge, that practice would violate Section 3.30 of Handbook 44 because it would not be selling gasoline in liters, gallons, or fractions thereof. (Handbook 44, §§ 3.30, S.1.2. & S.1.2.1.) If U-Haul were to sell gasoline by the vehicle tank, it would be subject to the extremely exacting rules of Handbook 44, Section 4.40, “Vehicle Tanks Used as Measures,” which provide for very specific measures, tolerances, and delivery specifications that would require greater accuracy than a dashboard gasoline gauge can deliver. If U-Haul were to sell gasoline by measure-containers, either “[r]etail measure-containers intended to be used only once to determine at the time of retail sale, and from bulk supply, the quantity of commodity on the basis of liquid measure” or “[p]repackaged measure-containers intended to be used only once to determine in advance of sale the quantity of a commodity... on the basis of liquid measure,” where the container would serve as the container for the delivery of the fuel, U-Haul would be required to measure the container’s contents by the quart, liter or fraction thereof. (Handbook 44, § 4.43, A.1. & S.1.) As we understand it, the purpose of our scheme of weights and measures law is to ensure reliable weights and measures to protect customers and to ensure regularity in transactions, not to create arcane hoops to be jumped through and rigid definitions that invite the design of systems to avoid their exact scope. (See Pitney-Bowes, Inc. v. State of California (1980) 108 Cal.App.3d 307, 321 [“the legislative intent and purpose of the mandatory regulatory and licensing scheme embodied in section 12001 et seq. is to protect consumers from unfair dealings where the person who sells tangible goods weighs the goods and collects a charge based on the weight of the goods sold”].) Keeping in mind the purpose of the statutory scheme and Handbook 44’s statement that we should apply its provisions where they clearly are appropriate even when device design diverges from that described in the Handbook, we cannot accept U-Haul’s contention that because it has managed to separate the delivery from the measurement of gasoline, it no longer has any obligation to follow the rules requiring a precise and accurate measure of liquids when it sells gasoline to consumers through rental motortruck refueling charges.
Section 4.43 of Handbook 44 does permit any capacity to be used for prepackaged measure-containers when the capacity is less than one-fourth of a liter or one-half of a liquid pint, but we cannot imagine such small quantities coming into play in this context. (Handbook 44, § 4.43, S.1.)
Aron has alleged, and it does not appear to be contested, that the dashboard fuel gauges in U-Haul motortrucks are incapable of measuring in the units of measurement required by Handbook 44, Section 3.30. We conclude, therefore, under the general laws concerning weights and measures prior to the enactment of section 13800, that a dashboard fuel gauge was not a measurement instrument that could legally be used to commercially measure and sell gasoline in rental motortrucks in the State of California.
This conclusion leads inescapably to the conclusion that section 13800 was a change rather than a clarification of the true meaning of the law. Before section 13800 was enacted, existing law precluded the use of dashboard fuel gauges for measuring and selling fuel in rental motortrucks. After section 13800, the practice was made legal when determining refueling charges for rental vehicles. The enactment of section 13800 changed the legal status of this practice from impermissible to permissible and is therefore “an unmistakable change” in the law, not a clarification. (Carter, supra,38 Cal.4th at p. 922; see also McClung, supra, 34 Cal.4th at pp. 471-472 [a clarification leaves the “true meaning” of the law unchanged; a change in law alters the legal consequences of specific actions].)
In seeking to demonstrate that section 13800 did not change the law, U-Haul returns to the statement of the Legislative Counsel, now arguing that it sets forth not merely legislative intent but also the applicable law. U-Haul argues, “The statement in the Legislative Counsel’s Digest of S[enate Bill No.] 970 is dispositive—existing Weights and Measures law did not apply to vehicle fuel gauges at the time of introduction of S[enate Bill No. 970] and enactment of the Statute [section 13800],” and asserts, “Prior to enactment of the Statute [section 13800] ‘existing law [did] not regulate the use of rental vehicle fuel gauges as a measuring instrument on rental vehicle transactions.’ S[enate] B[ill No.] 970, Legislative Counsel’s Digest.” While the Legislative Counsel’s Digest is relevant to ascertaining legislative intent, it is never dispositive on the subject of statutory interpretation. As the Supreme Court has said, “Under fundamental principles of separation of powers, the legislative branch of government enacts laws. Subject to constitutional constraints, it may change the law. But interpreting the law is a judicial function.” (McClung, supra, 34 Cal.4th at p. 470; see also Marbury v. Madison (1803) 5 U.S. 137.) Surely U-Haul does not mean to contend that the Legislative Counsel’s powers to interpret the law exceed those of the legislative branch and require deference from the branch of government charged with interpreting the law. While we are not convinced that the Legislative Counsel meant its statement in the Digest to be understood as U-Haul advocates, even if that was the Legislative Counsel’s intent, the Legislative Counsel’s statements cannot supersede the statutes of the State of California.
III. Retroactive Application
Our conclusion that section 13800 changed rather than clarified existing law “does not itself decide the question whether it applies to this case. It just means that applying the [new] section to this case would be a retroactive application. ‘The fact that application of [the statute] to the instant case would constitute a retroactive rather than a prospective operation of the statute is, of course, just the beginning, rather than the conclusion, of our analysis.’ [Citation.]” (McClung, supra, 34 Cal.4th at pp. 474-475.)
“A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so.” (Western Security, supra, 15 Cal.4th at p. 243.) “‘[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.’ [Citation.]” (McClung, supra, 34 Cal.4th at p. 475.) Section 13800 contains no express language of retroactivity, nor do we find any sources that provide a clear and unavoidable implication that the Legislature intended retroactive application. U-Haul contends that the occasional statements in the legislative history that this law clarifies existing law should be understood as plain intent of retroactive application, but none of these statements demonstrate “‘the manifest intention of the legislature’” (McClung, at p. 475, citation omitted) that the statute is to be applied retroactively. Moreover, the California Supreme Court has said that neither the case on which U-Haul relies, Western Security, supra, 15 Cal.4th 232, nor California Employment Stabilization. Commission v. Payne (1947) 31 Cal.2d 210, “holds that an erroneous statement that an amendment merely declares existing law is sufficient to overcome the strong presumption against retroactively applying a statute that responds to a judicial interpretation.” (McClung, at p. 476.) This is all the more true here where nothing in the legislative history demonstrates that the Legislature was aware that the language of the bill it was considering swept more broadly than the rental cars that the Legislature understood itself to be regulating. As we have discussed above, the legislative history suggests that the Legislature focused exclusively on the bill’s application to rental car operations (where, as we have discussed, the law arguably is a clarification of the law) and never considered whether the law should have retroactive effect in the arena in which it represented a change in the law: its application to rental vehicles that fell outside the refueling charge authorization of Civil Code section 1936, subdivision (n)(2). Accordingly, from our review of the legislative history we do not discern a clear and unavoidable implication that the Legislature intended the law to apply retroactively. We reject any argument that it should be so applied, and conclude that section 13800 does not apply retroactively to conduct predating its amendment. Accordingly, the trial court erred when it granted the motion for judgment on the pleadings/motion to strike on the ground that section 13800 governed the instant action.
The legislative history contains numerous statements that the legislation is not intended to affect the instant litigation in any way, and that the author of the bill intended to clarify that fact in future amendments to the bill. This contemplated amendment does not appear to have materialized, which leaves these statements subject to at least three interpretations: (1) the Legislature did not intend to impact the instant litigation, but a clarifying amendment was overlooked or deemed unnecessary; (2) the Legislature did not want to prescribe any impact on this litigation from the new law; or (3) the Legislature elected not to include language disavowing any impact on this case because it in fact wanted the new law to affect the course of the case. On the record before us we cannot determine which of these three interpretations, if any, is correct—but the fact that these three interpretations of the Legislature’s intent are plausible based on the legislative history is further indication that the legislative history does not provide a clear and unavoidable implication that the Legislature intended retroactive application. (McClung, at p. 475.)
DISPOSITION
The petition for writ of mandate is granted. The trial court is directed to vacate its order granting the motion for judgment on the pleadings, or, in the alternative, striking allegations from the complaint; and to replace it with an order denying the motion. Each party shall bear its own costs in this writ proceeding.