Judge Jill Feeney, Case 21STCV01717 2023-02-06 Tentative Ruling

Department 30, Spring Street Courthouse

Motion for Leave to Intervene filed by Intervenor Financial Indemnity Company

The motion is granted.

Financial Indemnity Company is ordered to file and serve its Complaint-in-Intervention or Answer-in-Intervention within 10 days after the date of this order.

Moving party to give notice.

This is an action for negligence arising from a vehicle collision which took place in January 2019.

On September 13, 2022, Proposed Intervenor, Financial Indemnity Company, filed the instant motion to intervene.

Proposed Intervenor argues its motion should be granted because it is Defendant’s insurer and Defendant is refusing to respond to its communications and communications from counsel.

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).

Under California law, an insurance carrier who is not a party to an action can intervene on behalf of its insured when the insurance carrier could be subject to a subsequent action under Insurance Code section 11580. (See Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386, (“An insurer’s right to intervene in an action against the insured, for personal injury or property damages, arises as a result of Ins. Code section 11580.”).) “Section 11580 provides that a judgment creditor may proceed directly against any liability insurance covering the defendant, and obtain satisfaction of the judgment up to the amount of the policy limits. Thus, where the insurer may be subject to a direct action under Insurance Code section 11580 by a judgment creditor who has or will obtain a default judgment in a third party action against the insured, intervention is appropriate.” (Id.; see also Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1468 (permitting an insurer to intervene in lawsuit to litigate liability and damage issues).) “‘Intervention may . . . be allowed in the insurance context, where third party claimants are involved, when the insurer is allowed to take over in litigation if its insured is not defending an action, to avoid harm to the insurer.’” (Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1205 (quoting Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 206).)

Proposed Intervenor seeks a court order granting leave to intervene on the grounds that it has a direct and immediate interest in the action.

Proposed Intervenor alleges it is Defendant Estey Ballina Lujano’s insurer. (Proposed Complaint, p.1.) In June 2022, Counsel for Intervenor attempted to contact Defendant via phone and through family members. (Hill Decl., ¶4.) Defendant did not respond. (Id.) Counsel attempted contact again in August 2022 to no avail. (Id., ¶¶5-6.)

Intervention is allowed here because Proposed Intervenor, as Defendant’s insurer, may be subject to direct action under Insurance Code section 11580 in the event of an adverse outcome. Defendant refused to respond to counsel’s communications and has never defended this action. Proposed Intervenor seeks to intervene to defend against the claim on Defendant’s behalf and to defend its own interests. Proposed Intervenor properly notified the other parties in this action of its intention to intervene and received no opposition.

The motion is granted pursuant to Insurance Code section 11580.