Department 30, Spring Street Courthouse

August 1, 2022

20STCV39344

Motion to Quash Service of Summons by Specially Appearing Defendant Stephen Thompson

The motion is granted.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

On October 13, 2020, Plaintiff Herman Gonzalo Mancera (“Plaintiff”) filed a Complaint against Defendants Stephen Thompson and Does 1-50, inclusive (“Defendant”) alleging a cause of action for motor vehicle negligence and general negligence arising out of a motor vehicle collision that occurred on October 31, 2018. 

On May 14, 2021, Plaintiff named Doe 1 as Wicked Campers, Inc. 

On May 2, 2022, Defendant Wicked Campers, Inc. and Defendant Stephen Thompson, specially appearing through counsel, filed a motion to quash service of summons. 

On July 21, 2022, Defendant Wicked Campers, Inc. and Defendant Stephen Thompson, specially appearing through counsel, filed a reply.

Trial has been set for March 16, 2023. 

 “A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .”  (Code Civ. Proc., § 418.10(a).)  “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]”  (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)  “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.”  (Id. at 1441-1442.)  When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.”  (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.)  “A court lacks jurisdiction over a party if there has not been proper service of process.”  (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Defendant Wicked Campers, Inc. and Defendant Stephan Thompson, specially appearing through counsel, argue that on April 1, 2022, Plaintiff Herman Gonzalo Mancera filed with the Court a proof of service of summons on Stephen Thompson. (Declaration of Austin Smith "Smith Decl." ¶ 2; Exh. 1.) The Proof of Service purports to have served Defendant Thompson by substituted service on Wicked Campers, Inc. (Id.) The substituted served was effectuated on March 31, 2022, by personally serving and then mailing documents to Wicked Campers, Inc.'s agent for service of process. (Id.) Plaintiff has attempted to serve Defendant Thompson through Wicked Campers, Inc. on the basis of Cal. Civil Code § 1939.33 provided that as a rental company, Wicked Campers is required to accept service on behalf of a foreign renter. (Smith Decl. ¶ 3; Ems. 2.) 

Defendant argues that the statutory predicate of Cal. Civil Code § 1939.33 is inapplicable because Defendant Thompson opted out of purchasing additional rental insurance and thus Wicked Campers is not required to accept service on his behalf (Declaration of John Webb "Webb Decl." ¶¶ 1-6, Exh. A.)

Code of Civil Procedure section 1939.33, subdivision (a) provides when a rental company enters into a rental agreement in the state for the rental of a vehicle to any renter who is not a resident of this country and, as part of, or associated with, the rental agreement, the renter purchases liability insurance, as defined in subdivision (b) of Section 1758.85 of the Insurance Code , from the rental company in its capacity as a rental vehicle agent for an authorized insurer, the rental company shall be authorized to accept, and, if served as set forth in this section, shall accept, service of a summons and complaint and any other required documents against the foreign renter for any accident or collision resulting from the operation of the rental vehicle within the state during the rental period. If the rental company has a registered agent for service of process on file with the Secretary of State, process shall be served on the rental company's registered agent, either by first-class mail, return receipt requested, or by personal service. (Civ. Code, § 1939.33, subd. (a).)

Section 1758.85 (b) of the Insurance Code states: “Liability insurance, which may include uninsured motorist coverage, whether offered separately or in combination with other liability insurance, that provides coverage to the renters and to other authorized drivers of a rental vehicle and is nonduplicative of any standard liability coverage or self-insurance limits provided by the rental company in its rental agreement, for liability arising from the negligent operation of the rental vehicle during the rental period.” 

Defendant has provided the declaration of John Webb attesting that all vans come with standard liability coverage. (Webb Decl. ¶ 3.) On October 31, 2018, Stephen Thompson entered into the Vehicle Rental Agreement with Wicked Campers, Inc. Thompson obtained standard liability coverage and voluntarily chose to opt-out of purchasing an additional liability coverage offered by Wicked Campers, Inc. (Id. ¶ 4-6.) Here, Defendant Thompson had standard liability coverage and did not purchase additional liability coverage that is nonduplicative of any standard liability coverage, as defined in subdivision (b) of Section 1758.85 of the Insurance Code. Given that Defendant Thompson failed to purchase liability insurance as defined under subdivision (b) of Section 1758.85, Section 1939.33’s service provisions do not apply here. 

Accordingly, Defendant’s motion to quash service of summons is granted.