Judge: Kerry Bensinger, Case: 21STCV16346, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV16346    Hearing Date: February 17, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On April 30, 2021, plaintiffs Agusto Garcia and Adoracion Garcia (collectively, “Plaintiffs”) filed this action against defendants Nax Lei (“Lei”) and Does 1 through 50, asserting one cause of action for negligence against the defendants.

The Complaint alleges the following. On or about January 3, 2019, at a public road in the County of Los Angeles, the defendants negligently entrusted, managed, maintained, drove, and operated their vehicle so as to cause it to collide with Plaintiffs’ vehicle and injure them. (Compl., ¶¶ 8, 9.)

On December 12, 2022, specially appearing non-party Avis Rent A Car System, LLC (“Avis”), filed the instant motion to quash erroneous service made upon Avis on behalf of Defendant Lei.

As of January 30, 2023, no opposition to the motion had been filed.

          However, at the hearing on February 1, 2023, Plaintiffs’ counsel requested, and Court granted a continuance to allow counsel to file an opposition to the motion.

          On February 2, 2023, Plaintiffs filed their opposition.

          On February 9, 2023, Avis filed its reply.

II. LEGAL STANDARD

          “A motion to quash service of summons permits a defendant to challenge personal jurisdiction where the summons is improper or the statutory requirements for service of process are not fulfilled.” (Stancil v. Superior Court (2021) 11 Cal.5th 381, 402; Code Civ. Proc., § 418.10, subd. (a)(1) [“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion… To quash service of summons on the ground of lack of jurisdiction of the court over him or her”].)

“Although the defendant is the moving party and must present some admissible evidence (declarations or affidavits) to place the issue before the court (by showing the absence of minimum contacts with the state), the burden of proof is on the plaintiff to establish, by a preponderance of the evidence, a basis for jurisdiction (minimum contacts between the defendant and the forum state) and valid service of process in conformance with our service statutes.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229, 1232–1233; Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)

III. DISCUSSION

          On November 1, 2022, Plaintiffs filed a Proof of Service of Summons, claiming that they personally served Defendant Lei by delivering the Summons, Complaint, and other documents to non-party Avis. (Proof of Service, filed November 1, 2022, p. 1, Items 2 and 3.)

          Avis now moves to quash service on behalf of Defendant Lei.  Plaintiff argues the motion should be denied because Lei was properly served pursuant to Civil Code section 1939.33, which states in relevant part:

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.

(Civ. Code, § 1939.33, subd. (a) [emphasis added]; see Motion, declaration of Jeradon Z. Mura (“Mura Decl.”), ¶ 6; Exhibit C [letter from Plaintiffs’ counsel to Avis, arguing that Plaintiffs were serving Defendant Lei through Avis pursuant to Civil Code section 1939.33].)

Avis argues Plaintiff fails to meet the requirements of Civil Code section 1939.33 because Lei did not purchase liability insurance from Avis.

Plaintiff makes three arguments in opposition to the motion to quash: 1) Avis lacks standing to bring the motion to quash; 2) Lei purchased liability insurance; and 3) Plaintiff complied with Civil Code section 1939.33 to effectuate service. 

A.    Standing

The statute compels Avis to accept service if the statutory conditions are met.  Because the statute implicates Avis as the entity that “shall” accept service, Avis has standing to challenge Plaintiff’s compliance. 

B.    Insurance Coverage

          Plaintiff argues Lei purchased insurance coverage.  Plaintiff makes two arguments.  First, Plaintiff contends that because Lei was a foreign national, Avis was required to and/or did sell Lei liability insurance.  Plaintiff does not present any evidence in support of this argument – no expert declaration or evidence, such as statutory obligation.  This argument fails for lack of evidence.  

          Second, Plaintiff argues Exhibit A to Mura’s Decla. is not the rental agreement, but rather a rental receipt.  Plaintiff also challenges Mura’s declaration.  While not specific, Plaintiff, in essence, alleges that Mura lacks the foundation to reach the conclusion Lei did not rent liability insurance, and Mura’s declaration lacks foundation for the admissibility of Exhibit A.

          Plaintiff’s concerns have merit and warrant further inquiry.  Mura does not provide sufficient information about his background, training, and experience with Avis to provide the conclusion offered; Mura does not lay a sufficient business record exception (EC 1271) for the admission of Exhibit A, and Exhibit A does not appear to be the rental agreement.  Mura’s declaration does not sufficiently explain the difference between a rental receipt and a rental agreement with respect to locating whether a renter purchased liability insurance.  These points will be addressed at the hearing.

C.   Civil Code section 1939.33

          If Avis can cure the defects identified above, then Avis’s presentation would be sufficient to shift the burden to Plaintiff to establish that Lei, in fact, purchased liability insurance, which is an essential element set forth in Civil Code section 1939.33.  Ultimately, however, it is Plaintiff’s burden, by a preponderance of the evidence, to show that the court has jurisdiction pursuant to Civ. Code, § 1939.33.    

          The Court will hear from counsel.