Judge: Lee S. Arian, Case: 22STCV28644, Date: 2023-12-13 Tentative Ruling

Case Number: 22STCV28644    Hearing Date: December 13, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Proposed Intervenor Infinity Select Insurance Company (“Infinity”)   

I.            INTRODUCTION

This action arises from a motor vehicle accident which occurred on September 23, 2020. On September 1, 2022, Plaintiff Anait Kazaryan (“Plaintiff”) filed a complaint against Defendants Baz Mohammad Nomair (“Nomair”) and Does 1 to 10, alleging causes of action for: (1) Motor Vehicle; and (2) General Negligence.

On October 18, 2022, Plaintiff filed an Amendment to Complaint substituting A-1 Auto Body, LLC (“A-1”) for Doe 1. On March 1, 2023, Plaintiff filed a proof of service which shows that Defendant A-1 was served with the summons and complaint on February 24, 2023 by substituted service. Plaintiff has not filed a proof of service showing that service of the summons and complaint has been effectuated upon Defendant Nomair.

On June 2, 2023, Infinity Select Insurance Company (“Infinity”) filed and served the instant unopposed motion for leave to intervene on behalf of Defendants Nomair and A-1 to assert denials, assert defenses, and to file a complaint-in-intervention to answer the operative complaint (the “Motion”). The Motion is unopposed. Any opposition to the Motion was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

The Motion is made on the grounds that Infinity has a direct interest in the litigation in this matter because its insureds, Defendants Nomair and A-1, have refused to participate in their own defense in this matter.  

II.          LEGAL STANDARD

“An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by . . . [u]niting with a defendant in resisting the claims of a plaintiff.” (Code Civ. Proc., § 387, subd. (b)(2).) To intervene in an action “[a] nonparty shall petition the court for leave to intervene by noticed motion or ex parte application.” (Code Civ. Proc., § 387, subd. (c).) “The petition shall include a copy of the proposed . . . answer in intervention and set forth grounds upon which intervention rests.” (Ibid.)

A nonparty must be allowed to intervene if either of the following conditions are satisfied: (1) a provision of law confers an unconditional right to intervene; or (2) the person seeking intervention claims an interest related 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, subd. (d)(1)(A)-(B).)  A court has discretionary authority to allow a nonparty to intervene “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, subd. (d)(2).)

III.        DISCUSSION

Infinity contends that it has a direct and immediate interest in the outcome of this litigation and its intervention will not enlarge the issues in the case.

Issue No.1: Appropriateness of Infinity Intervening

          “Pursuant to section 387 the trial court has discretion to permit a nonparty to intervene when 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.) When a nonparty insurer intervenes, the nonparty insurer is deemed to not enlarge the issues in the case since the insurer will almost certainly assert the same defenses as their insured. (Id. at p. 388.)

“An insurer’s right to intervene in an action against the insured, for personal injury or property damage, arises as a result of Insurance Code section 11580.” (Ibid.) “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.” (Ibid.) “[W]here 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.” (Ibid.) “[I]ntervention by an insurer is permitted where the insurer remains liable for any default judgment against the insured, and it has no means other than intervention to litigate liability or damage issues.” (Id. at p. 385.)

In support of the Motion, Infinity presents the declaration of its counsel, Jessica Spinola (“Spinola”). Infinity issued a Commercial Auto Policy to Defendants Nomair and A-1, which provided liability coverage from February 29, 2020 to February 28, 2021 with a combined single limit of $30,000 per accident. (Spinola Decl., ¶ 3 and Exhibit B.) Defendants are the named defendants in Plaintiff’s complaint, which arises from a vehicle accident that occurred on or about September 23, 2020. (Id., ¶ 2.) Defendant Nomair is the organizer of Defendant A-1 according the company’s Articles of Organization filed with the California Secretary of State. (Id., ¶ 4 and Exhibit C.) Counsel has made previous attempts to locate and contact Defendant Nomair in related cases, however, each attempt has been unsuccessful. (Id., ¶ 7 and Exhibit E.)  Counsel attests that the proofs of service filed with the Court indicate that Defendant Nomair was served with the summons and complaint via substitute service on November 17, 2022, and Defendant A-1 was served with the summons and complaint by mail substituted service on February 24, 2023.[1] (Id., ¶ 8 and Exhibit F.) A private investigator was hired to attempt to contact Defendant Nomair prior to filing the Motion, however, such efforts were unsuccessful. (Id., ¶¶ 9-10.) Infinity seeks to intervene for the purpose of asserting defenses to damages and liability. (Id., ¶ 12 and Exhibit G.)

          The Court finds that allowing Infinity to intervene is appropriate. The Motion is procedurally proper. Infinity is seeking to intervene in this action to protect its own interests and that of Defendants. It follows that Infinity has a direct and immediate interest in this action. Also, the Court finds that Infinity intervening in this action will not enlarge the issues in this litigation. Infinity is seeking to intervene due to Defendants’ non-responsiveness and the inability to locate Defendants. Lastly, Plaintiff presents no argument on why Infinity should not be allowed to intervene. The Motion is also unopposed which leads to an inference that it has merit pursuant to Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.

          Accordingly, the Motion is GRANTED.

IV.         CONCLUSION

The Motion is GRANTED. Infinity is ordered to separately file the proposed Answer-in-Intervention—which is attached as Exhibit G to the declaration of Spinola in support of the Motion—with the Court within five calendar days of this Court’s order.  

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 13th day of December 2023