STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS LONAN LEON, ET AL.

Tentative Rulings

Case Number: 20STLC06632    Hearing Date: February 11, 2021    Dept: 25

HEARING DATE:   Wed., February 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: State Farm Mutual Automobile Ins. Co. v. Leon, et al.

CASE NUMBER: 20STLC06632 COMPL. FILED: 08-07-20

PROCEEDINGS:     (1) DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY:   Defendant Hertz Vehicles, LLC

RESP. PARTY: Plaintiff State Farm Mutual Automobile Insurance Co.

DEMURRER

(CCP § 430.10, et seq.)

PROCEEDINGS:     (2) MOTION TO INTERVENE  

MOVING PARTY:   Prospective Intervenor Hertz Corporation

RESP. PARTY: Plaintiff State Farm Mutual Automobile Insurance Co.

MOTION TO INTERVENE

(CCP § 387)

TENTATIVE RULING:

(1) Defendant Hertz Vehicles, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

(2) Prospective Intervenor Hertz Corporation’s Motion to Intervene is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Demurrer

OPPOSITION: Filed on January 28, 2021 [   ] Late [   ] None

REPLY: Filed on February 3, 2021 [   ] Late [   ] None

Motion for Leave to Intervene

OPPOSITION: Filed on January 29, 2021 [   ] Late [   ] None

REPLY: Filed on February 3, 2021 [   ] Late [   ] None

ANALYSIS:

1. Background

On August 7, 2020, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed an action against Defendants Lonan Leon (“Leon”) and Hertz Vehicles, LLC (“Hertz Vehicles”). Plaintiff filed proofs of service demonstrating Defendant Leon was substitute served on August 20, 2020 and Defendant Hertz Vehicles was personally served on August 18, 2020. (8/28/20 Proofs of Service.)

On December 18, 2020, Proposed Intervenor Hertz Corporation filed the instant Motion to Intervene (the “Motion”) and Defendant Hertz Vehicles filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). Plaintiff filed an Opposition to the Motion to Intervene on January 28 and an Opposition to the Demurrer on January 29. Defendant Hertz Vehicles and Proposed Intervenor filed Replies on February 3, 2021.

1. Demurrer

A. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

B. Discussion

The Demurrer is accompanied by the required meet and confer declaration. (Dem., Bolin Decl., ¶¶ 2-3, 6.)

Defendant Hertz Vehicles demurs to the Complaint on the basis that it is uncertain. (Dem., pp. 6:3-7:12.) However, as noted above, special demurrers are not permitted in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court does not consider this Demurrer on the basis of uncertainty. Defendant Hertz Vehicles also demurs on the basis that the Complaint fails to state a cause of action. (Dem., p. 2:1-2.)

Plaintiff alleges (1) that on September 4, 2019, Defendant Leon “negligently operated a motor vehicle, legally, foreseeably, and proximately causing an accident” that caused Plaintiff’s insured to suffer damages in the amount of $15,246.33; (2) that Defendant Leon was operating the motor vehicle with the permission of Defendant Hertz Vehicles, the owner of the vehicle; (3) that Defendant Hertz Vehicles was negligent in entrusting the vehicle to Defendant Leon; and (4) that Defendant Hertz Vehicles was the principal or employer of Defendant Leon who was driving within the course of this employment or agency relationship at the time of the accident. (Compl., ¶ 6.)

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) “Liability for negligent entrustment amounts to a determination whether a duty exists to anticipate and guard against the negligence of others. [Citation.]” (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.) “The cause of action parallels that at common law for negligent entrustment, resting on a demonstration of knowing entrustment to an incompetent or dangerous driver with actual or constructive knowledge of his incompetence. [Citation.]” (Id.) In addition, a rental car company may be held liable for negligently entrusting one of its cars to a customer. (Id.) “Rental car agencies are required by state law to determine whether a potential customer possesses a valid driver’s license from the jurisdiction where he resides. [Citation].” (Id. at p. 649.) “In addition to its statutory duty, a rental car company has a duty not to rent a car to a person who appears to be mentally or physically impaired or shows other signs of incompetence at the time the vehicle is rented. [Citation.]” (Id.)

Defendant Hertz Vehicles argues the Graves Amendment precludes claims against car rental companies like Hertz from being held liable for the alleged negligence of its renters. (Dem., pp. 4:15-5:4.) The Graves Amendment provides, in pertinent part:

“(a) An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).”

(49 U.S.C. § 30106, subd. (a).)

Here, Plaintiff has not alleged that Defendant Leon rented or leased a vehicle from Defendant Hertz Vehicles. As is well-established, “[t]he ‘demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot properly be inferred from the factual allegations of the complaint.’” (Saint Francis Memorial Hospital v. State Department of Public Health (Jan. 13, 2021, A150545) _____ Cal.App. ____ [2021 WL 115994, at *4].) The Court cannot read into the Complaint that Defendant Hertz Vehicles rented Defendant Leon the vehicle which allegedly caused the September 4, 2019 accident. Nor can the Court consider the extrinsic evidence attached to Defendant Hertz Vehicles’ reply papers in making a ruling on this Demurrer.

In any case, Plaintiff’s claims of liability against Hertz Vehicles appear to be based on negligent entrustment, not general negligence of the driver, Defendant Leon. However, Plaintiff’s conclusory allegation that Defendant Hertz negligently entrusted the vehicle to Defendant Leon is insufficient. Plaintiff has not alleged any facts that demonstrate Defendant Hertz had actual or constructive knowledge that Defendant Leon was an incompetent or dangerous driver. Thus, the Demurrer as to Plaintiff’s only cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

C. Defendant’s Request for Sanctions

Defendant Hertz Vehicles requests sanctions of $1,120.00 under Code of Civil Procedure section 128.5 because Plaintiff’s claims are “totally and completely without merit.” (Dem., p. 7:15-27.) However, any request for sanctions pursuant to Section 128.5 must be made separately from other motions and meet the 21-day safe harbor requirement of subsection (f)(1)(D). (Code Civ. Proc., § 128.5, subds. (f)(1)(A), (D).) Defendant Hertz Vehicles has not complied with these requirements. Thus, Defendant Hertz Vehicles’ request for sanctions pursuant to Section 128.5 is DENIED.

1. Leave to Intervene  

A. Legal Standard

Intervention is permitted when “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.” (Code Civ. Proc., § 387, subd. (d)(1)(B).) Whether the petitioner has an interest in the matter in litigation is a question of fact that must be determined by the court before leave to file is granted.  (Muller v. Robinson (1959) 174 Cal.App.2d 511, 515; In re Yokohama Special Bank (1948) 86 Cal.App.2d 545.) The burden rests on the one seeking to intervene to show that this is a proper case for intervention. (Id. at 515.) 

B. Plaintiff’s Evidentiary Objections

Plaintiff’s evidentiary objections to Prospective Intervenor Hertz Corporation’s counsel’s declaration in support of the Motion are SUSTAINED as to Objection No. 1 and OVERRULED as to Objection Nos. 2-6.

C. Discussion

Proposed Intervenor Hertz Corporation moves for leave to intervene on behalf of Defendant Leon arguing it has a direct and immediate interest in this litigation. (Mot., p. 2:3-5; p. 5:14-17.) Hertz Corporation argues it has a self-insured policy that may potentially cover the damages alleged against Defendant Leon. (Id. at p. 5:14-17.) Insurance Code section 11580, subdivision (b)(2) provides that an insurance policy must contain “[a] provision that whenever judgment is secured against the insured…in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.”

In its moving papers, however, Proposed Intervenor Hertz Corporation did not submit any documentary evidence demonstrating a Defendant Leon was covered under a Hertz Corporation policy at the time of the alleged September 4, 2019 accident. In Reply, Proposed Intervenor Hertz Corporation submitted a copy of a rental record receipt demonstrating Defendant Leon rented a 2017 Nissan Sentra from the Hertz Corporation. (Reply, Bolin Decl., ¶ 2, Exh. B.) First, evidence is generally not permitted in reply papers as it deprives the opposing party of the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Even if the Court were to consider this rental record, it states that Defendant Leon rented a vehicle from Hertz Corporation from August 19, 2019 through August 26, 2019. (Reply, Bolin Decl., ¶ 2, Exh. B). As the alleged accident at issue in this action occurred on September 4, 2019 (Compl., ¶ 6), this rental receipt does not demonstrate Defendant Leon was covered under a Hertz Corporation insurance policy at the time of the alleged accident.

Because Proposed Intervenor Hertz Corporation has not demonstrated it has a direct interest in this action, the Motion is DENIED.

1. Conclusion & Order

For the foregoing reasons:

(1) Defendant Hertz Vehicles, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

(2) Prospective Intervenor Hertz Corporation’s Motion to Intervene is DENIED.

Moving party is ordered to give notice.

Case Number: 20STLC06632    Hearing Date: February 10, 2021    Dept: 25

HEARING DATE: Wed., February 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: State Farm Mutual Automobile Ins. Co. v. Leon, et al.

CASE NUMBER: 20STLC06632 COMPL. FILED: 08-07-20

PROCEEDINGS: (1) DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendant Hertz Vehicles, LLC

RESP. PARTY: Plaintiff State Farm Mutual Automobile Insurance Co.

DEMURRER

(CCP § 430.10, et seq.)

PROCEEDINGS: (2) MOTION TO INTERVENE

MOVING PARTY: Prospective Intervenor Hertz Corporation

RESP. PARTY: Plaintiff State Farm Mutual Automobile Insurance Co.

MOTION TO INTERVENE

(CCP § 387)

TENTATIVE RULING:

(1) Defendant Hertz Vehicles, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

(2) Prospective Intervenor Hertz Corporation’s Motion to Intervene is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Demurrer

OPPOSITION: Filed on January 28, 2021 [ ] Late [ ] None

REPLY: Filed on February 3, 2021 [ ] Late [ ] None

Motion for Leave to Intervene

OPPOSITION: Filed on January 29, 2021 [ ] Late [ ] None

REPLY: Filed on February 3, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On August 7, 2020, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed an action against Defendants Lonan Leon (“Leon”) and Hertz Vehicles, LLC (“Hertz Vehicles”). Plaintiff filed proofs of service demonstrating Defendant Leon was substitute served on August 20, 2020 and Defendant Hertz Vehicles was personally served on August 18, 2020. (8/28/20 Proofs of Service.)

On December 18, 2020, Proposed Intervenor Hertz Corporation filed the instant Motion to Intervene (the “Motion”) and Defendant Hertz Vehicles filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). Plaintiff filed an Opposition to the Motion to Intervene on January 28 and an Opposition to the Demurrer on January 29. Defendant Hertz Vehicles and Proposed Intervenor filed Replies on February 3, 2021.

1. Demurrer

A. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

B. Discussion

The Demurrer is accompanied by the required meet and confer declaration. (Dem., Bolin Decl., ¶¶ 2-3, 6.)

Defendant Hertz Vehicles demurs to the Complaint on the basis that it is uncertain. (Dem., pp. 6:3-7:12.) However, as noted above, special demurrers are not permitted in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court does not consider this Demurrer on the basis of uncertainty. Defendant Hertz Vehicles also demurs on the basis that the Complaint fails to state a cause of action. (Dem., p. 2:1-2.)

Plaintiff alleges (1) that on September 4, 2019, Defendant Leon “negligently operated a motor vehicle, legally, foreseeably, and proximately causing an accident” that caused Plaintiff’s insured to suffer damages in the amount of $15,246.33; (2) that Defendant Leon was operating the motor vehicle with the permission of Defendant Hertz Vehicles, the owner of the vehicle; (3) that Defendant Hertz Vehicles was negligent in entrusting the vehicle to Defendant Leon; and (4) that Defendant Hertz Vehicles was the principal or employer of Defendant Leon who was driving within the course of this employment or agency relationship at the time of the accident. (Compl., ¶ 6.)

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) “Liability for negligent entrustment amounts to a determination whether a duty exists to anticipate and guard against the negligence of others. [Citation.]” (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.) “The cause of action parallels that at common law for negligent entrustment, resting on a demonstration of knowing entrustment to an incompetent or dangerous driver with actual or constructive knowledge of his incompetence. [Citation.]” (Id.) In addition, a rental car company may be held liable for negligently entrusting one of its cars to a customer. (Id.) “Rental car agencies are required by state law to determine whether a potential customer possesses a valid driver’s license from the jurisdiction where he resides. [Citation].” (Id. at p. 649.) “In addition to its statutory duty, a rental car company has a duty not to rent a car to a person who appears to be mentally or physically impaired or shows other signs of incompetence at the time the vehicle is rented. [Citation.]” (Id.)

Defendant Hertz Vehicles argues the Graves Amendment precludes claims against car rental companies like Hertz from being held liable for the alleged negligence of its renters. (Dem., pp. 4:15-5:4.) The Graves Amendment provides, in pertinent part:

“(a) An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).”

(49 U.S.C. § 30106, subd. (a).)

Here, Plaintiff has not alleged that Defendant Leon rented or leased a vehicle from Defendant Hertz Vehicles. As is well-established, “[t]he ‘demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot properly be inferred from the factual allegations of the complaint.’” (Saint Francis Memorial Hospital v. State Department of Public Health (Jan. 13, 2021, A150545) _____ Cal.App. ____ [2021 WL 115994, at *4].) The Court cannot read into the Complaint that Defendant Hertz Vehicles rented Defendant Leon the vehicle which allegedly caused the September 4, 2019 accident. Nor can the Court consider the extrinsic evidence attached to Defendant Hertz Vehicles’ reply papers in making a ruling on this Demurrer.

In any case, Plaintiff’s claims of liability against Hertz Vehicles appear to be based on negligent entrustment, not general negligence of the driver, Defendant Leon. However, Plaintiff’s conclusory allegation that Defendant Hertz negligently entrusted the vehicle to Defendant Leon is insufficient. Plaintiff has not alleged any facts that demonstrate Defendant Hertz had actual or constructive knowledge that Defendant Leon was an incompetent or dangerous driver. Thus, the Demurrer as to Plaintiff’s only cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

C. Defendant’s Request for Sanctions

Defendant Hertz Vehicles requests sanctions of $1,120.00 under Code of Civil Procedure section 128.5 because Plaintiff’s claims are “totally and completely without merit.” (Dem., p. 7:15-27.) However, any request for sanctions pursuant to Section 128.5 must be made separately from other motions and meet the 21-day safe harbor requirement of subsection (f)(1)(D). (Code Civ. Proc., § 128.5, subds. (f)(1)(A), (D).) Defendant Hertz Vehicles has not complied with these requirements. Thus, Defendant Hertz Vehicles’ request for sanctions pursuant to Section 128.5 is DENIED.

1. Leave to Intervene

A. Legal Standard

Intervention is permitted when “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.” (Code Civ. Proc., § 387, subd. (d)(1)(B).) Whether the petitioner has an interest in the matter in litigation is a question of fact that must be determined by the court before leave to file is granted. (Muller v. Robinson (1959) 174 Cal.App.2d 511, 515; In re Yokohama Special Bank (1948) 86 Cal.App.2d 545.) The burden rests on the one seeking to intervene to show that this is a proper case for intervention. (Id. at 515.)

B. Plaintiff’s Evidentiary Objections

Plaintiff’s evidentiary objections to Prospective Intervenor Hertz Corporation’s counsel’s declaration in support of the Motion are SUSTAINED as to Objection No. 1 and OVERRULED as to Objection Nos. 2-6.

C. Discussion

Proposed Intervenor Hertz Corporation moves for leave to intervene on behalf of Defendant Leon arguing it has a direct and immediate interest in this litigation. (Mot., p. 2:3-5; p. 5:14-17.) Hertz Corporation argues it has a self-insured policy that may potentially cover the damages alleged against Defendant Leon. (Id. at p. 5:14-17.) Insurance Code section 11580, subdivision (b)(2) provides that an insurance policy must contain “[a] provision that whenever judgment is secured against the insured…in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.”

In its moving papers, however, Proposed Intervenor Hertz Corporation did not submit any documentary evidence demonstrating a Defendant Leon was covered under a Hertz Corporation policy at the time of the alleged September 4, 2019 accident. In Reply, Proposed Intervenor Hertz Corporation submitted a copy of a rental record receipt demonstrating Defendant Leon rented a 2017 Nissan Sentra from the Hertz Corporation. (Reply, Bolin Decl., ¶ 2, Exh. B.) First, evidence is generally not permitted in reply papers as it deprives the opposing party of the opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Even if the Court were to consider this rental record, it states that Defendant Leon rented a vehicle from Hertz Corporation from August 19, 2019 through August 26, 2019. (Reply, Bolin Decl., ¶ 2, Exh. B). As the alleged accident at issue in this action occurred on September 4, 2019 (Compl., ¶ 6), this rental receipt does not demonstrate Defendant Leon was covered under a Hertz Corporation insurance policy at the time of the alleged accident.

Because Proposed Intervenor Hertz Corporation has not demonstrated it has a direct interest in this action, the Motion is DENIED.

1. Conclusion & Order

For the foregoing reasons:

(1) Defendant Hertz Vehicles, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

(2) Prospective Intervenor Hertz Corporation’s Motion to Intervene is DENIED.

Moving party is ordered to give notice.