Judge: Helen Zukin, Case: 21SMCV00906, Date: 2022-10-21 Tentative Ruling
Case Number: 21SMCV00906 Hearing Date: October 21, 2022 Dept: 207
Background
Plaintiff Giroux
Glass, Inc. (“Plaintiff”) brings this action against Defendant James Clifton
(“Defendant”) asserting claims for negligence and indemnity stemming from
allegations of construction defects on a residential construction project in
Beverly Hills, California. The general contractor for that project, Kambur
Construction Group, Inc. (“Kambur”), moves the Court for leave to intervene in
this action to assert similar claims against Defendant stemming from the same
work and project which forms the basis of Plaintiff’s claims against Defendant.
Defendant opposes Kambur’s motion, Plaintiff does not.
Legal Standard
Code Civ.
Proc. § 387(d) provides the following:
(1)
The court shall, upon timely application, permit a nonparty to intervene in the
action or proceeding if either of the following conditions is satisfied:
(A)
A provision of law confers an unconditional right to intervene.
(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.
(2)
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.
(Code Civ.
Proc., § 387(d).)
To establish
a direct and immediate interest in the litigation for purposes of permissive intervention,
a non-party seeking intervention must show that he or she stands to gain or lose
by direct operation of the judgment, even if no specific interest in the property
or transaction at issue exists.¿ (Simpson Redwood Co. v. State of California¿(1987)
196 Cal.App.3d 1192, 1201.)¿ “Whether the intervener’s interest is sufficiently
direct must be decided on the facts of each case¿. . . .¿And section 387 should
be liberally construed in favor of intervention.”¿ (Id.¿at 1200.)¿ “In order
that a party may be permitted to intervene it is not necessary that his interest
in the action be such that he will inevitably be affected by the judgment.¿ It is
enough that there be a substantial probability that his interests will also be so
affected.¿ ‘The purposes of intervention are to protect the interests of those who
may be affected by the judgment¿. . . .’”¿ (Timberidge¿Enterprises, Inc. v. City
of Santa Rosa¿(1978) 86 Cal.App.3d 873, 881-882 [citations and emphasis omitted].)
“[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.)
Analysis
This action concerns the
construction of a residence at 1320 Beverly Grove Place in Beverly Hills,
California. The owner, Richard Solomon, contracted with Kambur to act as the
general contractor for the project. As general contractor, Kambur entered into
a subcontract with Plaintiff for certain work on the project. Plaintiff in turn
subcontracted some of this work to Defendant.
In December 2018, Kambur initiated
arbitration proceedings against the owner concerning unpaid amounts owing on
the construction project. The owner counterclaimed against Kambur, alleging
defects in the construction of the home. Kambur expanded its arbitration claims
to include a counterclaim against Plaintiff seeking indemnity for the owner’s
claims of construction defect. Kambur attempted to assert similar claims
against Defendant in the arbitration, but Defendant did not have an arbitration
clause in its agreement and would not consent to participate in the
arbitration. Plaintiff initiated this action against Defendant to seek defense
and indemnity against the claims of construction defect raised in the
arbitration. The related case between Plaintiff and Kambur (Case No.
19SMCV01173) has been stayed pending the conclusion of those arbitration
proceedings.
Kambur seeks permissive
intervention in the instant action pursuant to Code Civ. Proc. § 387(d)(2),
arguing it has a direct and immediate interest in this action as it concerns
Defendant’s liability for defense and indemnity against the owner’s claims for
construction defect in the arbitration. Kambur argues its own proposed
complaint in intervention is coextensive with the issues raised in Plaintiff’s
Complaint against Defendant in this action, as both Kambur and Plaintiff are
seeking indemnity from Defendant. Kambur argues if it is not permitted to
intervene in this action, it will have to file a separate lawsuit against
Defendant, which would be a waste of judicial resources as it would be
duplicative of the issues arising in this matter.
Defendant opposes Kambur’s request
for intervention. Defendant argues permitting Kambur to intervene in this
action would raise the risk of inconsistent verdicts as between the arbitration
proceedings and this action. Defendant offers no explanation as to how this
issue would be unique for intervention. Defendant’s argument appears to be it
is inappropriate for Kambur’s indemnity rights against Plaintiff to be
adjudicated in one forum, while Kambur’s indemnity rights against Defendant are
adjudicated in a separate forum. However, this issue stems not from Kambur’s
request to intervene in this matter but Defendant’s refusal to participate in
arbitration. The same issue would be present if the Court were to deny Kambur’s
motion to intervene and Kambur would be forced to file a separate lawsuit
against Defendant for indemnity. Accordingly, the Court does not find
Defendant’s argument supports the denial of Kambur’s motion.
Defendant also argues granting Kambur’s
motion would enlarge the issues in this litigation because “pleadings will need
to be amended and the discovery and investigation in this case must be greatly
expanded to establish Kambur’s own negligence.” (Opp. at 3.) The Court finds
the issues presented by Kambur’s proposed Complaint-in-Intervention would not
impermissibly “change[] the nature of the main proceeding.” (Muller v.
Robinson (1959) 174 Cal.App.2d 511, 515.) This action concerns whether
Defendant is liable for the construction defects alleged by the owner such that
it owes a defense and indemnity against the owner’s claims. The extent to which
the alleged defects were caused by others, such as Kambur, has thus been an
issue in this case since its inception. The Court does not find the inclusion
of Kambur in this litigation would impermissibly expand the issues raised by
this case.
Defendant suggests Kambur needlessly
delayed in requesting intervention in this matter. Kambur responds that it has
been attempting to bring Defendant into the arbitration proceedings for some
time, and the arbitrator only recently issued a ruling rejecting Kambur’s
request to do so. Defendant does not dispute this. Based on this explanation,
the Court is satisfied that Kambur was not dilatory in seeking intervention in
this matter.
Defendant claims Kambur’s motion
is procedurally defective as it did not include a copy of Kambur’s proposed
complaint-in-intervention. Kambur acknowledged this error shortly after filing
its motion on September 16, and on September 19 Kambur re-noticed its motion
for October 17 rather than October 12, and filed and served a declaration
attaching Kambur’s proposed complaint. On such facts the Court finds Kambur’s
proposed complaint-in-intervention was timely filed and served in accordance
with the deadlines set forth at Code Civ. Proc. § 1005(b).
The Court finds Kambur has
complied with procedural requirements in bringing its motion for intervention
and has shown it has a direct and immediate
interest in the action given the other litigation pending between the parties
concerning work performed by Plaintiff and Defendant in this action. The Court
also finds Kambur’s requested intervention will not impermissibly enlarge the
issues in the litigation. As the issues raised by Kambur’s proposed complaint
overlap with those raised by Plaintiff and concern the same facts and parties,
the Court finds permitting intervention would be the most efficient use of the
time and resources of the Court and the parties, which outweighs Defendant’s
interests in rejecting the requested intervention. Accordingly, the Court
GRANTS Kambur’s motion for leave to intervene.
Defendant asks the Court to
continue the trial date in this action by 120 days if it grants Kambur’s motion
to intervene. The Court finds Defendant has not demonstrated good cause for
such a continuance at this time. Trial in this action is set for April 17, 2023,
which gives the parties six months to prepare for trial. Defendant makes no
showing and offers no argument as to why this case will not be ready for trial
in six months. Accordingly, the Court declines Defendant’s request to continue
the trial date in this action.
Conclusion
Kambur Construction
Group, Inc.’s motion for leave to file a complaint-in-intervention is GRANTED.