Judge Edward B. Moreton, Jr., Case 22SMCV02712 2023-04-28 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 22SMCV02712, Date: 2023-04-28 Tentative Ruling

This is a personal injury case. Plaintiff Yasmin Barron was employed by Commercial Cleaning Services (“Employer”). Plaintiff has sued Defendants Entertainment Center LLC, One Hundred Towers LLC and CBRE, Inc. for injuries she sustained while on the job and when an escalator abruptly stopped causing her to fall. Prospective Intervenor Cypress Insurance Company as administered by Berkshire Hathaway Homestate Companies (“BHHC”) provides workers’ compensation insurance to Employer. BHHC has paid and continues to pay workers’ compensation benefits to or on behalf of Plaintiff, which to date, total $58,706.27.

This hearing is on BHHC’s motion for leave to intervene. BHHC seeks leave to intervene because it is subrogated to any and all rights which Plaintiff might have to recover from Defendants the amount of the workers’ compensation benefits. The motion for leave to intervene is unopposed.

Code of Civil Procedure, section 387, subdivision (d)(1) provides that the court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if “a provision of law confers an unconditional right to intervene.” Here, BHHC claims it has a right to intervene pursuant to Labor Code §§ 3852 and 3853.

Under Labor Code section¿3852, “[a]ny¿employer who pays, or becomes obligated to pay compensation . . . may likewise make a claim or bring an action against the third person.¿ In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damage for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents.”¿ Further, Labor Code section¿3853¿provides that “[i]f the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.”¿¿

“Employer” includes the workers’ compensation carrier. (Labor Code, § 3850, subd. (b).) “If the employer is insured against workmen’s compensation liability, the insurer has the same right of action as the employer, or is subrogated to the employer’s right. In enforcing its cause of action the insurer may . . . join as party plaintiff in the suit previously filed by the employee.”¿¿(Burum¿v. State Compensation Ins. Fund¿(1947) 30 Cal.2d 575, 580-581.)

In terms of the form of the petition, Code of Civil Procedure section 387, subdivision (c) provides that a nonparty “shall petition the court for leave to intervene by noticed motion or by ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.”

The Court finds that BHHC has satisfied the filing requirements of Code of Civil Procedure section 387, subdivision (c) by filing a noticed motion and declaration setting forth the grounds for intervention as well as a copy of its proposed complaint in intervention. (McCarthy Decl. ¶¶ 4-6; Exh. A.)

BHHC seeks to intervene in the action under Labor Code sections 3852 and 3853 as an insurer of Plaintiff’s employer with a right of subrogation. BHHC notes that pursuant to Plaintiff’s workers’ compensation insurance policy, BHHC has been obligated to pay medical expenses and other workers’ compensation benefits to Plaintiff following the injuries alleged in Plaintiff’s complaint. (McCarthy Decl. ¶ 4.) Thus, BHHC argues that it has “acquired a claim against Defendants for reimbursement and related relief under section 3852 of the California Labor Code[.]” (Id.)

The Court finds that BHHC is entitled to intervene under Code of Civil Procedure section 387. First, the Court finds that BHHC’s motion is timely because Labor Code section 3853 allows a nonparty to join as a party plaintiff “at any time before trial on the facts.” Trial has not been scheduled in this action. Second, the Court finds that Labor Code sections 3852 and 3853 grant BHHC the right to intervene under Code of Civil Procedure section 387 because BHHC has a right of subrogation as the insurer of Plaintiff’s employer and has incurred an obligation to continue paying workers’ compensation benefits to Plaintiff. (Lab. Code § 3852; see also Burum, 30 Cal.2d at 580-581.) Pursuant to Labor Code § 3852, BHHC may file a complaint-in-intervention to recover for the “total amount of compensation” paid to Plaintiff and related damages. Accordingly, the Court finds that BHHC has sufficiently claimed an interest relating to the disposition of this action for purposes of intervention.