Judge Lynette Gridiron Winston, Case Number: 22PSCV02834, Date: 2023-11-29 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV02834, Date: 2023-11-29 Tentative Ruling

Case Number: 22PSCV02834 Hearing Date: November 29, 2023 Dept: 6

CASE NAME: Gumersindo Arroyo, et al. v. Ramiro Aguilar, et al.

United Financial Casualty Company’s Motion for Leave to Intervene

TENTATIVE RULING

The Court GRANTS the Motion for Leave to Intervene. United Financial is ordered to separately file and serve the proposed Answer-in-Intervention with the Court within five calendar days of this Court’s order.

United Financial is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is an action arising from a motor vehicle accident. On December 12, 2022, Plaintiffs Gumersindo Arroyo and Magdalena Arroyo (“Plaintiffs”) filed a complaint against Defendants Ramiro Aguilar (“Aguilar”), Elizabeth Edelman (“Edelman”) (collectively, “Defendants”), and Does 1 through 25, alleging a single cause of action for negligence.

On February 17, 2023, Plaintiffs filed a proof of service indicating that Aguilar was served with the summons and complaint by substituted service on February 14, 2023. On March 15, 2023, Plaintiffs filed a proof of service indicating that Edelman was served with the summons and complaint by substituted service on March 13, 2023.

On June 1, 2023, Plaintiffs requested, and default was entered, against Defendants.

On October 17, 2023, United Financial Casualty Company (“United Financial”) filed a motion for leave to intervene in this action via an Answer in Intervention (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 pursuant to Code. Civ. Proc. Section 1005(b).

The Motion is brought pursuant to Code Civ. Proc. Sections 387(c) and 387(d) on the grounds that United Financial claims an interest relating to the property that is the subject of the action and is so situated that the disposition of the action may impair or impede its ability to protect its interest, unless its interest is adequately represented by one or more of the existing parties.

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(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(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. § 381(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(d)(2).)

DISCUSSION

Permitting United Financial to Intervene

“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, United Financial presents the declaration of its counsel, Nicole Fassonaki (“Fassonaki”). United Financial has not established contact with its insured, Edelman, or Aguilar since the filing of the lawsuit. (Fassonaki Decl., ¶ 3.) United Financial attempted all known telephone numbers and email addresses listed for Edelman but were unable to make contact. (Id.) United Financial also believed Aguilar was living in Mexico and the last known telephone number for him was no longer in service. (Id.) Counsel declares that her office has extensively tried to communicate with Defendants but have been unable to contact them or locate them. (Id., ¶ 4.) To date, counsel declares that she has not established contact with Edelman or Aguilar. (Id.) Counsel attests that United Financial is the insurer of Defendants and, as such, has a legal and contractual interest in the outcome of this case and in protecting and preserving all available defenses in the litigation of this matter. (Id., ¶ 5.) If United Financial is not allowed to intervene, it will be prejudiced in its ability to assert those protections and defenses. (Id.) A copy of United Financial’s proposed Answer-in-Intervention is attached to counsel’s declaration. (Id., ¶ 6 and Exhibit A.)

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

Based on the foregoing, the Motion is GRANTED.

CONCLUSION

The Court GRANTS the Motion. United Financial is ordered to separately file and serve the proposed Answer-in-Intervention with the Court within five calendar days of this Court’s order.

United Financial is ordered to give notice of the Court’s ruling within five calendar days of this order.