Judge: Kerry Bensinger, Case: 22STCV09902, Date: 2023-03-20 Tentative Ruling

Case Number: 22STCV09902    Hearing Date: March 20, 2023    Dept: 27

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

DANIEL BOLDEROFF,

                   Plaintiff,

          vs.

 

GREGORY DICOSTANZA, et al.

 

                   Defendants.

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CASE NO.: 22STCV09902

 

 

[TENTATIVE] ORDER RE: PLAINTIFF-IN-INTERVENTION INSURANCE COMPANY OF THE WEST’S MOTION FOR LEAVE TO FILE COMPLAINT-IN-INTERVENTION

 

 

Dept. 27

1:30 p.m.

March 20, 2023

 

I.         BACKGROUND

On March 22, 2022, plaintiff Daniel Bolderoff (“Plaintiff”) brought this action against defendant Gregory Dicostanza (“Defendant”) and Does 1 to 10, arising out of a January 24, 202 motor vehicle collision.  On August 4, 2022, Plaintiff named LA Excavating, Inc. as Doe 1.

Insurance Company of the West (“ICW”) now brings this motion for leave to file a complaint-in-intervention.  

No opposition has been filed.

II.        LEGAL STANDARD

“A nonparty shall petition the court for leave to intervene by noticed motion or 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.” (Code Civ. Proc. § 387(c).)

“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.” (Code Civ. Proc. § 387(d)(1).)

 

Where an employee brings an action for damages proximately caused by a third person, an employer who pays or becomes obligated to pay compensation, or salary in lieu of compensation, may likewise make a claim or bring an action against the third person.  (Lab. Code, § 3852.)  “[T]he employer may recover in the same suit, in addition to the total amount of compensation, damages 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.”  (Ibid.)

“A workers’ compensation carrier is authorized to attempt recovery of benefits paid either through the maintenance of an independent action (Lab. Code, § 3852), intervention in the employee’s action (Lab. Code, § 3853), or assertion of lien rights in the employee’s recovery (Lab. Code, § 3856, subd. (b).)”  (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1015, fn. 7.)

If leave to intervene is granted by the court, the intervenor shall separately file the complaint in intervention and serve notice of the court’s decision” to parties who have appeared. (Code Civ. Proc. § 387(e).)

III.      DISCUSSION

 ICW seeks leave to file a complaint-in-intervention on grounds that Pacific Coast Fleet Services, Inc., as Plaintiff’s employer, has a legal right to intervene and ICW is subrogated to the rights of Plaintiff and/or Plaintiff’s employer.

In support, ICW offers a declaration from counsel who states that ICW is the workers’ compensation carrier that insures Plaintiff’s employer, Pacific Coast Fleet Services, Inc.  ICW has paid workers’ compensation benefits to Plaintiff pursuant to the workers’ compensation laws of the state of California.  Counsel further states that this subrogation lien is not final as the underlying workers’ compensation case is still open.  (Fitzpatrick Decl., ¶¶ 6-7.)  For this reason, ICW seeks leave to file a complaint-in-intervention in this matter.

IV.     CONCLUSION

Accordingly, the motion is GRANTED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

      Dated this 20th day of March 2023

 

 

 

 

 

Hon. Kerry Bensinger

Judge of the Superior Court