Judge: Cynthia A Freeland, Case: 37-2023-00043442-CU-PO-NC, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 29, 2024

03/01/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00043442-CU-PO-NC BARTELS VS CARLSBAD STRAWBERRY COMPANY INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to Intervene, 12/28/2023

Associated Industries Insurance Company, Inc. ('Movant')'s motion for leave to intervene is granted.

California Code of Civil Procedure ('CCP') § 387(b) allows a nonparty to become a party to an action or proceeding between other persons by '[u]niting with a defendant in resisting the claims of a plaintiff.' Cal. Code Civ. P. § 387(b)(2). The court must permit a nonparty to intervene if either: '(A) A provision of law confers an unconditional right to intervene[, or] (B) The 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.' Cal. Code Civ. P. §§ 387(d)(1)(A), (B). Additionally, the court may allow a nonparty to intervene '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.' Cal. Code Civ. P. § 387(d)(2).

The court construes the lack of opposition by any interested party as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on October 9, 2021, Plaintiff William Keith Bartels ('Plaintiff') allegedly suffered hearing loss while attending Defendant Carlsbad Strawberry Company, Inc. ('Defendant')'s business. See Tesfai Decl., ¶ 3. At the time of Plaintiff's alleged accident, Defendant held a liability policy with Movant. Ibid., ¶ 5. On October 5, 2023, Plaintiff commenced this action by filing a personal injury action against Defendant. See ROA No. 1. Plaintiff served Defendant with the summons and Complaint via substitute service on October 26, 2023. See ROA No. 10; Tesfai Decl., ¶ 4. Movant has since discovered that Defendant is a Franchise Tax Board ('FTB') suspended company. Ibid., ¶ 5.

In the absence of opposition, the court finds that: (1) the motion is timely, and (2) Movant has established good cause to grant the requested relief under CCP §§ 387(d)(1) and (2). More specifically, Movant has demonstrated a direct and immediate interest in this action by virtue of the terms and conditions of its insurance policy with Defendant, which may require Movant to pay any judgment awarded to Plaintiff. See Turrieta v. Lyft, Inc. (2021) 69 Cal. App. 5th 955, 976 ('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.'); Cal. Ins. Code § 11580(b)(2). In addition, Movant cannot adequately protect its interests in this action absent intervention because Defendant has been suspended by the FTB and thus lacks standing to defend itself in this matter. See Cal. Rev. & Tax. Code § 23301; Gar-Lo, Inc. v. Prudential Sav. & Loan Assn. (1974) 41 Cal. App. 3d 242, 244; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc.

(2006) 136 Cal. App. 4th 212. In sum, a disposition of the case without Movant's participation may impair Calendar No.: Event ID:  TENTATIVE RULINGS

3070973 CASE NUMBER: CASE TITLE:  BARTELS VS CARLSBAD STRAWBERRY COMPANY INC  37-2023-00043442-CU-PO-NC its ability to protect its interests.

In light of the foregoing, the court grants Movant's motion for leave to intervene on Defendant's behalf and directs Movant to: (1) separately file its proposed Answer-in-Intervention (see Tesfai Decl., Ex. A.) within ten (10) days of this hearing, and (2) provide Code-compliant notice of this Order. See Cal. Code Civ. P. §§ 387(e)(1), (2).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 1, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 1, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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3070973