Judge Blaine K. Bowman, Case Number: 37-2023-00042983-CU-IC-CTL, Date: 2024-04-05 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2023-00042983-CU-IC-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Insurance Coverage Motion Hearing (Civil) 37-2023-00042983-CU-IC-CTL DEVELOPERS SURETY AND INDEMNITY COMPANY VS ACHEY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Plaintiff Developers Surety and Indemnity Company's request for judicial notice is GRANTED.

The court then rules as follows. Proposed Intervenor-Defendant California Automobile Insurance Company as Subrogee of Yafa Bolour's motion for leave to intervene is DENIED.

CAIC seeks permissive joinder. Although both sides cite to CCP § 387(a), they rely on the language of subsection (a) as it existed prior to the 2017 revision (which became effective on January 1, 2018). The current subsection, containing nearly identical language as former subsection(a), is CCP § 387(d)(2).

As set forth in State Water Bd. Cases (2023) 97 Cal.App.5th 1035, Section 387, subdivision (d)(2), provides, 'The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.' (Italics added.) Case law adds the following gloss: '[T]he trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.' (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386, 100 Cal.Rptr.2d 807, italics added.) State Water Bd. Cases, 97 Cal.App.5th at 1050. See also, South Coast Air Quality Management District v. City of Los Angeles (2021) 71 Cal.App.5th 314, 319.

The court addresses only the second factor as the court finds the analysis of this factor is dispositive.

To support permissive intervention, it is well settled that the proposed intervener's interest in the litigation must be direct rather than consequential, and it must be an interest that is capable of determination in the action. (People v. Superior Court (Good), supra, 17 Cal.3d at p. 736, 131 Cal.Rptr. 800, 552 P.2d 760; Fireman's Fund Ins. Co. v. Gerlach, supra, 56 Cal.App.3d at pp. 302–303, 128 Cal.Rptr. 396.) The requirement of a direct and immediate interest means that the interest must be of such a direct and immediate nature that the moving party ' 'will either gain or lose by the direct legal operation and effect of the judgment.' [Citation.]' (Jersey Maid Milk Products Co. v. Brock (1939) 13 Cal.2d 661, 663, 91 P.2d 599 (Jersey Maid ); Fireman's Fund Ins. Co. v. Gerlach, supra, 56 Cal.App.3d at p. 303, 128 Cal.Rptr. 396; Socialist Workers Etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 891, 125 Cal.Rptr. 915 (Socialist Workers ).) 'A person has a direct interest justifying intervention in litigation where the Calendar No.: Event ID: TENTATIVE RULINGS

3100458 3 CASE NUMBER: CASE TITLE: DEVELOPERS SURETY AND INDEMNITY COMPANY VS ACHEY 37-2023-00042983-CU-IC-CTL judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation. [Citation.]' (Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 549, 103 Cal.Rptr. 806, italics added (Continental Vinyl ).) Conversely, 'An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner.' (Id. at p. 550, 103 Cal.Rptr. 806.) City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1037.

CAIC's rights as against DSIC are contingent on CAIC first prevailing on its claims against Achey in the matter titled California Automobile Insurance Company as Subrogee of Yafa Bolour v. James Joseph Achey, individually and dba Calibra SD, Los Angeles Superior Court, Case No. 23SMCV03555. Absent prevailing its action against Achey, CAIC will not be a judgment creditor vis-à-vis Achey, and will not become a third-party beneficiary of Achey's insurance policy with DSIC, and, will not have standing to enforce such policy against DSIC under Insurance Code § 11580(b)(2). Such circumstances do not support a finding that CAIC has a direct and immediate interest in this matter. See, Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 211, 212 ['[i]t is not enough for Flat Rock to call itself a 'potential' judgment creditor, or a 'potential' beneficiary under the insurance policy' and '[o]nly abstract rights and interests have been asserted by Flat Rock, and they are too indirect, remote, and consequential']. See also, e.g., Colony Insurance Company v. Advanced Particle Therapy LLC (S.D.

Cal. 2017) 2017 WL 5483360 at *2-*3 [a hope of being able to tap into the insurance proceeds at some later date is insufficient] and Olson v. Hopkins (1969) 269 Cal.App.2d 638, 642 [the interest required for intervention must be 'of a direct and immediate character greater that that possessed by a simple creditor of a party'].

The court is not persuaded by CAIC's attempts to distinguish Royal. The court finds the analysis of the rights of a contingent creditor equally applicable to the circumstances presented on this motion. Nor is the court persuaded by the other arguments CAIC raises. CAIC fails to establish that DSIC prevailing on its coverage exclusion-based claims against Achey in this case necessarily resolves CAIC's negligence-based claims against Achey in the Los Angeles matter. Moreover, such argument does not detract from the contingent nature of CAIC's claims against DSIC. CSIC fails to cite to any authority under which potential duplication of issues is a consideration on a motion for leave to intervene. CAIC also raises an argument as to the potential res judicata effect of a default judgment in favor of DSIC and against Achey in this case. CAIC fails to cite to any authority to support this argument. And, as Royal recognizes, '[i]t would be premature at this point for us to discuss any hypothetical collateral estoppel effect of any future judgment in this action upon any later claims . . . under the policy.' Royal Indemnity, 162 Cal.App.4th at 212.

Absent establishing the requisite direct and immediate interest, the court finds CAIC fails to establish grounds for permissive intervention. Accordingly, the court exercises its discretion against allowing CAIC leave to intervene.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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