Department 30, Spring Street Courthouse

December 23, 2022

20STCV39905

Motion for Leave to Intervene and to Continue Trial filed by Plaintiff-in-Intervention New York Marine & General Insurance Company

The motion to intervene is granted.

NYM is ordered to file and serve its Complaint-in-Intervention within 10 days after the date of this order.

The motion to continue trial is granted.

The current trial and FSC dates are advanced and vacated.

Trial is set for March 21, 2023 at 8:30 a.m. in Department 30.

FSC is set for March 7, 2023 at 10:00 a.m. in Department 30.

An OSC Re: Dismissal for Failure to File Proof of Service/Enter Default with respect to the Cross-Complaint filed by Edith Raya is also set for March 7, 2023 at 10:00 a.m. 

Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of March 21, 2023.

To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the FSC.

The parties should not anticipate any further continuances. This is a firm trial date and the parties should be

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

This is an action for negligence arising from a workplace injury which took place in January 2020. Plaintiff Allison Cooper filed her Complaint against Edith Raya and Alan Gage Olson III as successor to the Estate of Alan Gage Olson II on October 16, 2020.

On November 28, 2022, Proposed Intervenor, New York Marine & General Insurance Company (“NYM”), filed the instant motion to intervene.

Moving Arguments

NYM argues its motion should be granted because Plaintiff Allison Cooper was working within the course and scope of her employment for PDSI, Inc. at the time of the accident. NYM is PDSI’s workers’ compensation insurance provider. NYM has paid and continues to pay workers’ compensation benefits to Allison Cooper.

NYM also moves to continue trial on the grounds that it has not had the opportunity to complete discovery and prepare for trial.

Opposing Arguments

None filed.

CCP section 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 p. 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). 

Labor Code sections 3852 and 3853 provide that an employer against whom a claim for workers’ compensation damages was made may join in an action against a third party arising out of the incident for which the workers’ compensation payment was made. (Lab. Code, §§ 3852, 3853.) “[Labor Code] [s]ection 3853 states that when an action is brought against a third party by either the employer or the employee, ‘the other may, at any time before trial on the facts, join as party plaintiff.’” (Jordan v. Superior Court (1981) 116 Cal.App.3d 202, 206 (quoting Labor Code section 3853).) An employer includes the employer’s insurer. (Lab. Code, § 3850(b).)

NYM seeks a court order granting leave to intervene on the grounds that Plaintiff was acting within the course and scope of her employment for PDSI, Inc. at the time of the subject accident.

NYM states in its motion that it is PDSI’s workers’ compensation benefits provider and that it paid and continues to pay Allison Cooper’s workers’ compensation benefits. (Gurvitz Decl., ¶3.) Plaintiff was working in the course and scope of her employment with PDSI when the injury occurred. (Id.)

Because NYM is PDSI’s insurer, the motion is GRANTED pursuant to Labor Code section 3853.

NYM is ordered to file its Complaint-in-Intervention within 10 days.

NYM also moves for a 60-day continuance and argues good cause exists because NYM will only be able to intervene after many discovery cut-off deadlines have already passed. (Gurvitz Decl., ¶20.) NYM would be prejudiced without a continuance because it would not have the opportunity to assess the parties’ adverse theories, conduct discovery, or designate experts in preparation for trial. (Id.)

It would be in the interests of justice to allow NYM to complete discovery and prepare for trial. 60-days is a reasonable time period for NYM to complete discovery and prepare for trial. No other parties have opposed this motion and will not be prejudiced by a continuance. This would be the second continuance in this matter. NYM’s motion to continue trial is granted.

Moving party is ordered to give notice.