Underwood v. Hertz Corp. CA2/7

Filed 11/13/26 Underwood v. Hertz Corp. CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN DONALD UNDERWOOD, B354062 Plaintiff and Appellant, (Los Angeles County Super. Ct. v. No. 23STCV26175) HERTZ CORPORATION, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, Gary D. Roberts, Judge. Reversed with directions. Donald Underwood, in pro per., for Plaintiff and Appellant. Kahana & Feld, Shayne L. Wulterin, Mitchell J. Steinberger and Mark. P Nelson for Defendant and Respondent.  INTRODUCTION Daniel Kirk rented a car from Hertz Corporation and got into an accident with Donald Underwood. Underwood sued Hertz, alleging Hertz was negligent in renting the car to Kirk without confirming he had a valid driver’s license. Hertz moved for summary judgment, arguing that Vehicle Code sections 14604 and 14608,1 which apply to rental car companies, precluded Underwood’s negligence claims. The trial court granted Hertz’s motion for summary judgment. Because Hertz did not meet its initial, moving burden on summary judgment, we reverse. FACTUAL AND PROCEDURAL BACKGROUND A. Underwood Files This Action Against Hertz Underwood alleged he was driving north on La Brea Avenue when he tried to make a U-turn. Kirk, who was driving a car he rented from Hertz, was also going north on La Brea, but he was speeding and driving on the wrong side of the road. As Underwood turned his car, Kirk’s car hit Underwood’s car from the left. Kirk’s airbags deployed. Kirk initially refused to provide Underwood any “identifying information,” but Underwood was able to take pictures of Kirk’s identification card and temporary license and of Hertz’s registration card for the car. Police officers arrived, and Kirk told them he did not purchase insurance when he rented the car. (Underwood v. Hertz Corp. (Apr. 10, 2025, B340282) [nonpub. opn] (Underwood I).) Underwood alleged Hertz was negligent in renting the car to Kirk. Underwood alleged Hertz failed to comply with 1 Undesignated statutory references are to the Vehicle Code. 2 section 14604, which provides a person may not rent a motor vehicle to another person without determining that the renter has a valid driver’s license. Underwood alleged Hertz, when it rented a car to Kirk, “intentionally ignored [the] risk when renting out a car to someone who was not legally authorized to rent.” B. The Trial Court Grants Hertz’s Motion for Summary Judgment Hertz filed a motion for summary judgment.2 Hertz argued that under section 14604 Hertz was not negligent in renting Kirk a car because Kirk had a valid, albeit temporary, California driver’s license. Hertz argued that, “where there is evidence that a Defendant met its affirmative duty to inquire as to a prospective driver’s license status, . . . and the prospective driver did, in fact, maintain a valid driver’s license, the owner of the vehicle cannot be held liable for the negligent entrustment cause of action.” Hertz argued the evidence showed it “abided by” section 14604 and “made an affirmative inquiry as to [Kirk’s] driver’s license status.”3 Hertz submitted the declaration of Andrew Londrillo, who stated his title was Senior Director, Ops Strategic Projects, for Hertz. His declaration included statements sufficient to qualify Hertz’s rental record for the business records exception to the 2 Hertz had filed a demurrer to Underwood’s second amended complaint, which the trial court sustained without leave to amend. We reversed that order in Underwood I. 3 Hertz made several other arguments it does not make on appeal. 3 hearsay rule. He stated: “As the Hertz Rental File reflects, on August 17, 2023, a person named Daniel [Kirk] rented a vehicle from Hertz, which vehicle Hertz owns and which I am informed was involved in [an] accident underlying this lawsuit. Attached as Exhibit A is a true and correct copy of Mr. Kirk’s Rental Agreement with Hertz. This document was obtained from Hertz’s files that are maintained as part of its regular course of practice. [¶] Hertz requires its rental agents to verify that renters show the agents a facially valid state driver’s license before releasing any rental vehicle. [¶] Here, the Rental Agreement confirms that Hertz complied with this requirement, as the Rental Agreement recites a driver’s license number for Mr. Kirk consistent with Hertz’s policies [and] practices for renting vehicles.” Attached to Londrillo’s declaration was a one-page document titled “Rental Record: 540074161,” which reflected that Hertz rented Kirk a car on August 17, 2023. The document was not the actual rental agreement with Kirk, but it included Kirk’s home address, phone number, and date of birth, as well as this entry: “DL: Y1596550.” This number appears to be the number Londrillo stated was Kirk’s driver’s license number, though it is also the number on his California identification card (a picture of which Underwood attached to his second amended complaint). Hertz did not submit any other evidence in support of its motion for summary judgment. Underwood filed an opposition to Hertz’s motion for summary judgment, but he did not submit any evidence. He argued, among other things, Hertz was “at fault for letting . . . Kirk rent a vehicle in the first place with an invalid temporary license they say he possessed. [Hertz] did not verify 4 the validity of the temporary license they claim was presented during time of rental and allowed their customer to rent with mutilated, torn, and/or altered identification and without requiring he purchase insurance for the vehicle, if he had a valid temporary license as their policy states.” He argued the “illegible, mutilated document in question is NOT a valid temporary driver’s license and should not have been able to be used to rent a vehicle from Hertz.” He argued Hertz could not “prove their client had an active permanent driver’s license which is the only way, per their policy, a person can rent a vehicle without insurance.” The trial court granted Hertz’s motion for summary judgment.4 After quoting section 14608 the court stated: “Here, there is no evidence of negligence or criminal wrongdoing in this case on behalf of [Hertz]. There is no evidence that the vehicle was negligently entrusted to Kirk, and there is no evidence that a malfunction or defect caused the incident. [Hertz] provides . . . the Rental Agreement [sic] with Kirk which reflects that [Hertz] viewed and recorded Kirk’s license number. (See UMF 7, Londrillo Decl. ¶¶ 6-7 [‘Hertz requires its rental agents to verify that renters show the agents a facially valid state driver’s license before releasing any rental vehicle’], Ex. A [Hertz Rental Agreement with Kirk].) [Underwood] has not provided any evidence that demonstrates that an issue of fact exists regarding . . . whether [Hertz] negligently entrusted the vehicle to Kirk.” The court entered judgment in favor of Hertz, and Underwood timely appealed. 4 We augment the record to include the trial court’s February 19, 2026 order granting Hertz’s motion for summary judgment. (See Cal. Rules of Court, rule 8.155(a)(1)(A).) 5  DISCUSSION A. Summary Judgment Law and Standard of Review “‘A trial court properly grants a motion for summary judgment where “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) A defendant who moves for summary judgment has the initial burden of showing each cause of action is without merit. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 1068.) “A defendant can meet this burden by ‘prov[ing] an affirmative defense, disprov[ing] at least one essential element of the plaintiff's cause of action [citations], or show[ing] that an element of the cause of action cannot be established.’” (Severin Mobile Towing, Inc. v. JPMorgan Chase Bank, N.A. (2021) 65 Cal.App.5th 292, 302; see Code Civ. Proc., § 437c, subd. (p)(2).) “‘[A] defendant moving for summary judgment based upon the assertion of an affirmative defense . . . “has the initial burden to show that undisputed facts support each element of the affirmative defense.”’” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468; see Severin Mobile Towing, Inc. v. JPMorgan Chase Bank, N.A., supra, 65 Cal.App.5th at p. 302.) “‘Only after the defendant carries that initial burden does the burden shift to the plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”’” (D.G. v. Orange County Social Services Agency 6 (2025) 108 Cal.App.5th 465, 470; see Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-850.) Where the defendant fails “to meet that burden, ‘the plaintiff need not make any showing at all.’” (Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th at p. 469; see Mosley v. Pacific Specialty Ins. Co. (2020) 49 Cal.App.5th 417, 434-435 [“‘[i]f the defendant [moving for summary judgment] fails to meet this initial burden [of production], it is unnecessary to examine the plaintiff’s opposing evidence; the motion must be denied’”].) B. The Trial Court Erred in Granting Hertz’s Motion for Summary Judgment 1. Hertz Did Not Meet Its Moving Burden To Show It Was Entitled to Summary Judgment Under Sections 14604 and 14608 Hertz relies on two statutes governing rental car company liability. The first, section 14604, subdivision (a), states: “No owner of a motor vehicle may knowingly allow another person to drive the vehicle upon a highway unless the owner determines that the person possesses a valid driver’s license that authorizes the person to operate the vehicle. For the purposes of this section, an owner is required only to make a reasonable effort or inquiry to determine whether the prospective driver possesses a valid driver’s license before allowing him or her to operate the owner’s vehicle. An owner is not required to inquire of the [Department of Motor Vehicles] whether the prospective driver possesses a valid driver’s license.” Subdivision (b) of section 14604 provides that a “rental company is deemed to be in 7 compliance with subdivision (a) if the company rents the vehicle in accordance with Sections 14608 and 14609.” The second, section 14608, subdivision (a), states: “A person shall not rent a motor vehicle to another person unless both of the following requirements have been met: [¶] (1) The person to whom the vehicle is rented is licensed under this code or is a nonresident who is licensed under the laws of the state or country of his or her residence. [¶] (2) The person renting to another person has inspected the driver’s license of the person to whom the vehicle is to be rented and compared either the signature thereon with that of the person to whom the vehicle is to be rented or the photograph thereon with the person to whom the vehicle is to be rented.”5 Sections 14604 and 14608 “‘circumscribe[ ] the duty of a rental car agency to investigate the license status (and, by implication, the driving history) of its customers.’ [Citation.] Taken together, those statutes prohibit a rental car agency from renting a car to an unlicensed driver and require the agency to ‘“make a reasonable effort’” to determine whether the prospective driver possesses a valid driver’s license.’” (Tavares v. Zipcar, Inc. (2026) 118 Cal.App.5th 219, 231.) “Thus, as a matter of law, ‘a rental car agency is not liable for negligent entrustment where the agency has fully complied with the requirements of . . . sections 14604 and 14608 and the customer does not appear impaired or otherwise unfit to drive at the time of rental.’” (Tavares, at p. 231; see Enterprise Rent-A-Car of Los Angeles v. 5 Section 14609 states what records a person renting a motor vehicle must keep. 8 Superior Court (2022) 84 Cal.App.5th 1, 7; Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1066, 1070.) Hertz argues that it complied with sections 14604 and 14608 and that “such compliance precludes negligent- entrustment liability as a matter of law; absent evidence the agency knew or should have known the driver was unfit.” Hertz argues that it “had no actual or constructive knowledge of any unfitness” of Kirk to drive and that the “undisputed evidence shows Hertz met every requirement of sections 14604 and 14608.” In moving for summary judgment, Hertz arguably met its burden to show it determined Kirk had a valid driver’s license. Londrillo, who had no personal knowledge of whether the person who rented Kirk the car determined he had a valid license, authenticated and qualified for admission a record of Kirk’s rental. And that document showed someone at Hertz entered a valid driver’s license for Kirk, a number that matched the number on the torn temporary license Underwood took a picture of at the accident scene. Contrary to Underwood’s argument, a temporary driver’s license is a valid driver’s license; a person with a temporary license from the Department of Motor Vehicles “is licensed” (§ 14608, subd. (a)(1)) under the Vehicle Code. (See § 12506 [Department of Motor Vehicles “may issue a temporary driver’s license to any person applying for a driver’s license, to any person applying for renewal of a driver’s license, or to any licensee whose license is required to be changed, added to, or modified”].) But Hertz submitted no evidence anyone compared the signature on his temporary license with Kirk’s signature (and Kirk’s temporary license does not have a photograph on it). 9 Londrillo did not say this, nor could he; he wasn’t there. Unlike the rental car company in Enterprise Rent-A-Car of Los Angeles v. Superior Court, supra, 84 Cal.App.5th 1, which submitted deposition testimony of the employee who handled the rental transaction with the driver (id. at p. 13),6 Hertz did not submit a declaration or deposition testimony from anyone involved in renting Kirk the car. Hertz did not submit any evidence on the second requirement of section 14608, subdivision (a). Therefore, Hertz did not meet its moving burden on summary judgment to show it was not liable for negligence because it “fully complied” with sections 14604 and 14608. (See Philadelphia Indemnity Ins. Co. v. Montes-Harris (2006) 40 Cal.4th 151, 163 [“[t]he Legislature has determined that a rental car company ‘is deemed to be in compliance’ with the requirement that an owner make a reasonable effort or inquiry to determine whether a prospective driver possesses a valid driver’s license if, before renting to a customer, it visually inspects the customer’s driver’s license and verifies the customer’s signature in accordance with section 14608, subdivision (b)”]; O’Brien v. Midway Rent-A-Car, Inc. (2026) ___ Cal.App.5th ___, ___ [2026 WL 3257588, p. 9] [“Vehicle Code section 14608 prohibits a lessor from renting a vehicle to someone unless the person has a license and the lessor has inspected the license to ensure it is the lessee’s.”].) 6 The rental car employee in Enterprise Rent-A-Car of Los Angeles v. Superior Court, supra, 84 Cal.App.5th 1 testified at her deposition that she could not recall three years after the rental transaction whether she verified the renter’s name and address and that she did not examine his signature, but that she “always examines the photograph on the license to check that it matches the person presenting the license.” (Id. at p. 13.) Hertz submitted no such testimony here. 10  2. Hertz Did Not Meet Its Moving Burden To Show It Was Entitled to Summary Judgment on Underwood’s Negligence Cause of Action Hertz argues in the alternative that “[e]ven if statutory compliance alone did not foreclose liability[,] an outcome unsupported by controlling authority[,] Underwood’s negligent- entrustment claim would still fail because he cannot prove the elements required under California common law.” After stating the elements of a cause of action for negligent entrustment of a motor vehicle,7 Hertz argues “Underwood offers no evidence that Hertz knew or should have known Kirk was incompetent or unfit. Kirk presented a valid California license proof [sic] that he had passed the DMV’s examinations and was authorized to drive. Underwood does not claim Kirk appeared intoxicated, impaired, or otherwise unfit at the rental counter.” For example, Hertz says, Underwood “presents no evidence of a history of accidents, traffic violations, or unsafe driving, and no evidence that Hertz possessed any information suggesting Kirk posed a danger.” The problem with Hertz’s argument is that, on summary judgment, Underwood did not have the burden to present any of this evidence. Hertz argued in the trial court, and argues on appeal, Underwood “cannot establish that Hertz negligently 7 The driver was negligent in operating the vehicle; the defendant owned the motor vehicle operated by the driver or possessed the vehicle with the owner’s permission; the defendant knew, or should have known, that the driver was incompetent or unfit to drive the vehicle; the defendant permitted the driver to drive the vehicle; and the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 566.) Only the third element is at issue in this appeal. 11 entrusted the rental vehicle to” Kirk. Hertz, however, had (and has) the law backward. Hertz, as the party moving for summary judgment, had the burden to present evidence it did not know and had no reason to know Kirk was incompetent or unfit to drive the car he was renting. And other than submitting a copy of a document from its files that included a driver’s license number that matched the number on Kirk’s identification card and temporary license, Hertz did not submit any information about what it knew about Kirk’s competence or fitness to drive a car. (See Tavares v. Zipcar, Inc., supra, 118 Cal.App.5th at p. 231.) Unlike the car rental companies in Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055 and Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, Hertz did not submit evidence, for example, that when Kirk rented the car he was sober and did not appear to be under the influence of alcohol. (See Flores, at p. 1060; Osborn, at pp. 706, 710.) Unlike the rental car company in Enterprise Rent-A-Car of Los Angeles v. Superior Court, supra, 84 Cal.App.5th 1, Hertz did not submit deposition testimony regarding the rental transaction with Kirk (or any deposition testimony at all). (See id. at p. 13.) And unlike in Philadelphia Indemnity Ins. Co. v. Montes-Harris, supra, 40 Cal.4th 151, there was no evidence a rental agent found Kirk “qualified to rent a car after inspecting his driver’s license, which appeared facially valid, and verifying his signature.” (Id. at p. 156.) Underwood may well have the burden at trial to prove Hertz knew or should have known Kirk was incompetent or unfit to drive, but he did not have the burden to make that showing on summary judgment: Hertz did. It is true, as Hertz argued in its motion for summary judgment (but does not argue on appeal), that a defendant may 12 obtain summary judgment by showing “the plaintiff does not possess and cannot reasonably obtain[ ] needed evidence” and that the defendant “may satisfy the summary judgment burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim.” But the defendant must still submit some evidence. To obtain summary judgment, the defendant “may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854, fn. omitted; see Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 173 [“the moving party’s ‘simply pointing to’ the absence of evidence supporting plaintiff’s position is not in itself enough to obtain summary judgment in its favor”; there “must be some ‘affirmative showing’ by the moving defendant that plaintiff could not obtain such evidence, before summary judgment would be proper”].) “Thus, ‘the defendant must “support[ ]” the “motion” with evidence including “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” must or may “be taken.”’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 945-946; see Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) 13  Hertz did not submit any discovery responses, deposition testimony, or other evidence showing Underwood did not possess and could not reasonably obtain evidence on the elements of his negligence cause of action, including evidence whether Hertz knew or should have known Kirk was incompetent or unfit to drive. Other than a driver’s license number, which confirms Kirk was licensed to drive but not that he was fit to drive when he rented the car from Hertz, there was no evidence at all on this point. Hertz asserted in its separate statement that Underwood “has no evidence that Hertz negligently entrusted the rental car to” Kirk, but Hertz cited only its rental record, which Hertz stated reflected “that Hertz viewed and recorded [Kirk’s] license number.”8 Hertz simply asserted that Underwood “has no evidence that Hertz negligently entrusted the vehicle to” Kirk and that there “is no evidence that Hertz had any knowledge” that Kirk “was unfit to operate a vehicle prior to” the accident. Those assertions were not sufficient to meet Hertz’s moving burden on summary judgment, and the trial court erred in granting Hertz’s motion. (See Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 240 [“Argument alone is insufficient.”]; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 81 [“No California case has concluded that a party moving for summary judgment can simply argue there is an ‘absence’ of facts to support the opposing party’s case.”].) 8 We augment the record to include Hertz’s separate statement of undisputed material facts in support of its motion for summary judgment. (See Cal. Rules of Court, rule 8.155(a)(1)(A).) 14  DISPOSITION The judgment is reversed. The trial court is directed to vacate its order granting Hertz’s motion for summary judgment and to enter a new order denying the motion. Underwood is to recover his costs on appeal. SEGAL, Acting P. J. We concur: FEUER, J. STONE, J. 15