Judge Kerry Bensinger, Case 21STCV16346 2023-04-14 Tentative Ruling

On April 30, 2021, Plaintiffs Agusto Garcia and Adoracion Garcia filed this action against Defendant Nax Lei arising from a January 3, 2019 motor vehicle accident. Though not clear from the Complaint, Defendant is a resident of China who was operating a rental vehicle at the time of the collision. Non-party Avis Rent A Car System, LLC (“Avis”) rented the vehicle to Defendant.

On December 12, 2022, Avis, specially appearing, filed this motion to quash service of summons. Plaintiff opposes and Avis replies.

Pursuant to Code of Civil Procedure section 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 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.”

Civil Code section 1939.33, subdivision (a) sets forth the conditions that permit service of process upon a car rental company for a foreign defendant who is involved in a motor vehicle accident or collision resulting from the operation of a rental vehicle. That section states:

“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, …, 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 …, shall accept, service of a summons and complaint for any accident or collision resulting from the operation of the rental vehicle within the state during the rental period.”

Avis argues the service of summons should be quashed because Plaintiff has attempted to erroneously effect service through Civil Code section 1939.33

The point is well taken. Civil Code section 1939.33 permits a rental car company to be served with a summons and complaint when a defendant who is not a resident of this country enters into a car rental agreement with the rental company and purchases liability insurance. Here, Civil Code section 1939.33 does not apply because Defendant did not purchase liability insurance when renting the vehicle from Avis. In support, Avis submits the Declaration of Jeradon Z. Mura and the rental agreement between Avis and Defendant which show that Defendant did not purchase liability insurance. (See Mura Decl., ¶ 3, Ex. A.)

Plaintiff argues that Section 1939.33 applies because (1) the “rental agreement” Avis submits is a rental receipt that merely reveals Defendant rented the vehicle, (2) the Mura Declaration is hearsay and provided by an adjuster, not a representative or employee at Avis that rented the vehicle to Defendant, and (3) Defendant, as a nonresident of this country, could not rent a vehicle from Avis without having purchased liability coverage from Avis.

These arguments fail. “Motions are normally heard on affidavits alone.” Crocker Citizens Nat. Bank v. Knapp (1967) 251 Cal.App.2d 875, 880.) First, the Mura Declaration avers that Exhibit A is a true and correct copy of Defendant’s rental agreement. (Mura Decl., ¶ 3.) Plaintiff fails to establish that the Mura Declaration is not trustworthy. Avis also submits the Declaration of Jeanne Motosko, a Risk Manager of Avis’s affiliated company and parent corporation, who attests that the term “Receipt” appears on all printed copies of computer-generated rental agreements for rental car affiliates like Avis (Motosko Decl., ¶ 9) and that Defendant’s rental did not include purchase of liability insurance (Motosko Decl., ¶ 14). Avis, as the moving party, has presented admissible evidence to place the issue of defective service before the Court; Plaintiff, however, has the burden of proof to establish a basis for jurisdiction and valid service of process. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131; Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) Plaintiff does not carry that burden.

Second, Plaintiff’s assertion that Defendant could not rent a vehicle from Avis without having purchased liability coverage from Avis is unsupported. The essence of Plaintiff’s assertion is that Avis was required to sell liability coverage to Defendant because Defendant is not a resident of this country. Plaintiff fails to identify California authority that imposes such a requirement on a car rental company.

Plaintiff next argues that Avis has no standing to bring this motion. This argument is also meritless. “One who is not named either by his true or a fictitious name or as an unknown defendant is not a proper party to an action, and service of summons upon such person upon proper motion should be quashed.” (Fuss v. City of Los Angeles (1958) 162 Cal.App.2d 643, 646, citing Kline v. Beauchamp (1938) 29 Cal.App.2d 340, 342 (quotations omitted).) Here, Avis, a nonparty, has been erroneously served with Plaintiff’s summons and complaint.

Based on the foregoing, Avis is entitled to an order quashing Plaintiff’s service of summons.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court