Judge: Daniel M. Crowley, Case: 21STCV33517, Date: 2023-02-23 Tentative Ruling

Case Number: 21STCV33517    Hearing Date: February 23, 2023    Dept: 28

Intervenor Ace American Insurance Company's Motion for Leave to Intervene

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On September 10, 2021, Plaintiffs Avraham Phil (“Phil”) and Anat Phil-Golan (“Phil-Golan”) filed this action against Defendants Hertz Vehicles LLC (“Hertz”) and Weonkyou Moon (“Moon”) for motor vehicle negligence, general negligence and negligence per se.

On October 4, 2021, Hertz filed an answer. On October 21, 2021, Hertz filed an amended answer. On January 18, 2022, Moon filed an answer.

On January 5, 2023, Intervenor Ace American Insurance Company (“Intervenor”) filed a Motion for Leave to Intervene to be heard on February 23, 2023. On February 7, 2023, Plaintiffs filed an opposition. On February 15, 2023, Intervenor filed a reply.

Trial is currently scheduled for May 9, 2023.  

PARTY’S REQUESTS

Intervenor requests the Court grant leave for to intervene and join with Moon.

Plaintiffs request the Court deny the motion for being untimely.

LEGAL STANDARD

CCP §387(a) provides: “[u]pon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties…may intervene in the action or proceeding.” CCP § 387(b) provides that: “...if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede the person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit the person to intervene.

DISCUSSION

Intervenor requests leave to join this action on behalf of Moon, as it was providing Moon with liability insurance at the time of the incident. Plaintiff served Moon via Hertz under Civil Code § 1939.33, which allows a Plaintiff to serve a vehicle rental company when a non-resident purchases liability insurance. Parties have been unable to contact or locate Moon. As Intervenor is the party who provided insurance to Moon, Intervenor may be liable to satisfy any judgment entered against Moon.  Intervenor has a right to join in the action, which has yet to go to trial.

Plaintiffs argue that the motion is untimely. The timeliness of an application to intervene is “determined based on the date the proposed intervenors knew or should have known their interests in the litigation were not being adequately represented.” (Ziani Homeowners Assn. v. Brookfield Ziani LLC, 243 Cal.App.4^th 274, 282.) Plaintiffs claim that Intervenor has known since at least April 8, 2022, that its interest was at risk, but waited 10 additional months to ask.

Intervenor notes in its reply that it has been attempting to contact Moon and was hoping to avoid having to intervene. After failing to contact Moon, Intervenor must now intervene. Furthermore, Intervenor notes that Plaintiffs have been aware of Intervenor’s role in providing insurance throughout discovery and should not be unduly surprised or prejudiced by this inclusion.

The Court grants the motion, finding that Intervenor makes a timely application after spending time attempting to contact the actual Defendant in this action. The action has yet to go to trial. However, the Court notes that it will not grant a continuance in the future based on Intervenor’s desire to conduct further discovery. Intervenor chose to not intervene until a few months prior to trial, despite being aware that Moon was difficult to locate. Intervenor made the conscious choice to not intervene earlier, and the Court will not prejudice other parties by continuing trial due to Intervenor’s choice.

CONCLUSION

Intervenor Ace American Insurance Company's Motion for Leave to Intervene is GRANTED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.