In Bayol v. Zipcar, Inc., 2015 WL 394515 (N.D.Cal. 2015), Judge Henderson found that a Plaintiff stated a claim for the imposition of illegal late fees under a fractional auto renter’s agreement.

California law places significant restrictions on a party’s ability to use a consumer contract to set what damages it will be entitled to in the event of a breach. California statute provides that, for a contract for the rental of personal goods or services for personal, family, or household purposes, “a provision in a con-tract liquidating damages for the breach of the contract is void except [when] it would be impracticable or extremely difficult to fix the actual damage.” Cal. Civil Code § 1671(d). . . .“California courts have defined [liquidated damages] as ‘an amount of compensation to be paid in the event of a breach of contract, the sum of which is fixed and certain by agreement….’ ” Chodos v. West Publ’g Co., 292 F.3d 992, 1002 (9th Cir.2002) (quoting Kelly v. McDonald, 98 Cal.App. 121, 125 (1929)). To be sufficiently fixed and certain to qualify as “liq-uidated damages,” a provision must either set the exact amount (i.e., a single number), or provide some formula by which the amount is “certain or readily ascertainable.” See Chodos, 292 F.3d at 1002. . . .Here, Zipcar’s late fees are clearly liquidated damages. The provision imposes late fees of $50 for each hour (or portion of an hour) that a car is kept beyond the end of a reservation, up to a maximum of $150. Membership Agreement, Ex. A to Mot., at Schedule 2, § 1. These fees are “fixed and certain” by the Membership Agreement, as the amount is imme-diately determined at the time the car is returned. ¶ Zipcar argues that its late fees are not liquidated damages because the amount is not the exact same in each case – it will vary from $50–$150 depending on how late a car is returned. However, as the cases above demonstrate, fees do not need to be applied in the exact same amount in order to be liquidated damages. ¶ Zipcar also misconstrues Chodos as imposing a strong requirement that fees be the same in all cases. As discussed above, the issue in that case was that there were no revenues on which to base the author’s 15% royalty calculation, not that the fee provision varied based on a formula. 292 F.3d at 1002. Zipcar ignores Chodos ‘s requirement that liquidated dam-ages be “certain or readily ascertainable.” Id. (emphasis added). . . .Zipcar provides no support for its argument that breach must be viewed as a single instant. Rather, it is reasonable to consider a late customer to be in breach until the car is returned. Given the very high degree of certainty provided in the Subscriber Agreement, the Court is not persuaded by the argument that the amount must be determinable at the very instant that the car first becomes late in order for the fee to be treated as liquidated damages. ¶ Plaintiff Bayol has shown that Zipcar’s Membership Agreement imposed liquidated damages for returning cars late, triggering the application of section 1671(d). Zipcar’s first argument in its motion to dismiss therefore fails. . . .Plaintiff has pled a plausible section 1671(d) vi-olation in this case. First, despite Zipcar’s argument to the contrary, Plaintiff has adequately alleged that this is the type of consumer contract covered by section 1671(d). As indicated above, section 1671(d) applies to contracts “for the retail purchase, or rental, by such party of personal property or services, primarily for the party’s personal, family, or household purposes.” Cal. Civ.Code § 1671(c)(1). Here, Plaintiff alleges that “The Membership Agreement is a contract for the purchase of services primarily for personal, family or household use of Bayol and the members of the class.” Compl. at ¶ 37. It is entirely plausible that Zipcar members would use their rentals for personal, family or household purposes; Plaintiff does not need to allege facts more specific than these.¶ . . . Regarding the section 1671(d) claim itself, Plaintiff alleges that, “it is neither impracticable nor extremely difficult to fix the actual damage” that Zipcar suffers when a car is returned late. Compl. at ¶ 25. “Furthermore … the Late Fees are not a reasonable measure of or approximation of such damages and do not provide fair average compensation therefor.” Id. “On information and belief, Zipcar did not conduct a reasonable endeavor to fix fair average compensation for [its] losses, if any….” Id.  Although these allegations are fairly conclusory, they are nonetheless sufficient for this type of claim. As discussed in Section I, above, Plaintiff has shown that the late fees were liquidated damages. The pro-vision is therefore presumed void, unless Zipcar shows that it was difficult to set the actual damages, and that the fees reflect a reasonable effort to estimate fair compensation. Plaintiff alleges that neither element is satisfied. ¶ Plaintiff’s claims are plausible. A company could reasonably consider several factors in setting a late fee besides estimating their actual damage, such as the likelihood of deterring late returns, or the opportunity to generate income from customers’ tardiness. More-over, a company that is headquartered in Massachu-setts and does business across the country (and inter-nationally) might not have prioritized the requirements of California law when it set its late fee. For both of these reasons, it is plausible that Zipcar’s late fees do not represent a reasonable endeavor to estimate the fair value of the loss that Zipcar actually suffers. ¶ The terms of the late fee provision also suggest a plausible mismatch with the damage Zipcar actually suffers. The minimum late fee is $50; this fee applies even where the car is returned an instant late, and no other reservations or operations are affected. On the other hand, the maximum fee is $150, even for a person who keeps a car out for 24 hours or more. It is plausible to conclude that Zipcar’s actual damage in the former case is zero, and actual damage in the latter case is greater than the damage it suffers from a car being returned three hours late, which also incurs a late fee of $150. It may be that Zipcar arrived at these fees as a way to average out its damage over all late returners, but this mismatch at least makes Plaintiff’s allegations plausible.