Judge Mark A. Young, Case Number: 23SMCV01204, Date: 2023-08-22 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV01204, Date: 2023-08-22 Tentative Ruling

Case Number: 23SMCV01204 Hearing Date: January 5, 2024 Dept: M

CASE NO.: 23SMCV01204

MOTION: Motion for Leave to Intervene

Motion to Compel Deposition

HEARING DATE: 1/5/2024

INTERVENTION Standard

“The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if… [t]he¿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.” (CCP § 387(d)(1)(A)-(B).) “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.” (CCP § 387(d)(2).)

The court may permit intervention 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. (Siena Court Homeowners Ass’n v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1428.) CCP section 387 should be liberally construed in favor of intervention. (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200.) “It is well settled that the intervener's interest in the matter in litigation must be direct, not consequential, and that it must be an interest which is proper to be determined in the action in which intervention is sought.” (Simpson, supra, 1199-1200.) If leave to intervene is granted by the court, the intervenor shall do both of the following:

(1) Separately file the complaint in intervention, answer in intervention, or both.

(2) Serve a copy of the order, or notice of the court's decision or order, granting leave to intervene and the pleadings in intervention as follows: (A) A party¿to the action or proceeding who¿has¿not¿yet¿appeared¿shall be served¿in the same manner¿for service of summons pursuant to Article 3 (commencing with¿Section 415.10) of Chapter 4 of Title 5 of Part 2. (B) A party¿who¿has¿appeared¿in the action or proceeding, whether represented by¿an attorney¿or not represented by an attorney, shall be served in the same manner for service of summons pursuant to Article 3 (commencing with¿Section 415.10) of Chapter 4 of Title 5 of Part 2, or in the manner provided by Chapter 5 (commencing with¿Section 1010)¿of¿Title 14 of Part 2.

(CCP § 387(e).)

INTERVENTION Analysis

Third-party intervenor State Farm Mutual Automobile Insurance Co. (“State Farm”) moves under CCP section 387 for leave to file a proposed Answer in Intervention.

The Court would grant the motion on both mandatory and permissive grounds. State Farm has a direct interest in the action because Defendant is State Farm’s insured, and would ultimately be liable for Defendant’s alleged negligence. (Grandy Decl., ¶ 7.) Critically, Defendant is apparently refusing to participate in this action, and is not communicating with his counsel or State Farm. (Id., ¶ 2.) Counsel has unsuccessfully attempted to reach Defendant. (Id., ¶ 3.) Because a liability insurer agrees to pay judgments obtained against its insured (Ins. Code § 11580(b)(2)), it is only logical that an insurer may intervene where the insured is not defending himself. (Reliance Insurance Company v. Superior Court (2000) 84 Cal.App.4th 383, 387.) Defendant’s absence is already causing prejudice to State Farm’s interest. Defendant is incurring sanctions for discovery abuse due to his non-participation. Further, substituting State Farm for its insured would not enlarge the issues in the litigation.

Plaintiff emphasizes two points – the delay in bringing this motion, and the prejudice of not having Defendant participate in the action. As to Plaintiff’s first point, there is some minor delay in bringing this motion. Defense counsel states that they first lost contact with Defendant in April 2023. Defense counsel does not elaborate on when or why they concluded that intervention would be necessary to protect State Farm’s rights. Counsel only provides that efforts were made to contact Perez in July 2023, when counsel retained an investigator who checked Perez’s house. It is unclear why State Farm waited until December 2023 to move to intervene, although as stated in the papers, it was reasonable to make additional efforts to locate Defendant before intervening.

In any event, the Court is not persuaded that this delay would provide sufficient grounds to deny the motion. Plaintiff points to no substantive prejudice from any delay, only identifying prejudice stemming from Defendant’s refusal to participate. However, Perez already is not participating in the action. Denying intervention would only serve to prejudice State Farm’s direct interest in this matter, not Plaintiff’s. In light of the above record, the Court finds that State Farm’s right to intervention outweighs any delay. Additionally, Plaintiff does not offer which substantive issues would be enlarged by State Farm’s participation in this action. As State Farm has the same interest as Defendant here, the issues should not be enlarged.

Accordingly, the motion for intervention is GRANTED.

MOTION TO COMPEL STANDARD

Service of a proper deposition notice obligates a party or “party-affiliated” witness (officer, director, managing agent or employee of party) to attend and testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying. (CCP § 2025.280(a).) If, after service of a deposition notice, a party deponent fails to appear, testify, or produce documents or tangible things for inspection without having served a valid objection under CCP § 2025.410, the deposing party may move for an order compelling attendance, testimony, and production. (CCP § 2025.450(a).) The motion must be accompanied by a meet and confer declaration, or, when a party deponent fails to attend the deposition, the motion must also be accompanied by a declaration stating that the moving party has contacted the party deponent to inquire about the nonappearance. (CCP § 2025.450(b)(2).)

MTC DEPOSITION ANALYSIS

Plaintiff moves to compel the deposition of Defendant. Plaintiff demonstrates that he served Defendant with a proper deposition notice. Following meet and confer efforts wherein defense counsel requested several extensions, the parties agreed to a December 8, 2023, deposition date. (Ames Decl., Ex. 13.) As such, Plaintiff served the operative fifth Notice of Deposition of Defendant on November 2, 2023, for the deposition date of December 8, 2023 at 2:00 p.m. (Id., Ex. 14.) Defendant did not provide any objection as to the date, time or location that would justify Defendant’s failure to appear on December 8, 2023. (Id., Ex. 15.) However, defense counsel informed Plaintiff’s counsel that Defendant would not be present for the deposition. (Id., Ex. 16.) Plaintiff thereby demonstrates that Defendant has refused to appear for deposition, without serving a valid objection. Defendant has failed to oppose this motion.

Accordingly, the motion to compel is GRANTED. Defendant Perez is ordered to attend a

deposition within 10 days at the noticed location, at a mutually agreeable time. Counsel are ordered to meet and confer on a mutually agreeable time.