Judge: Martha K. Gooding, Case: 22-01287749, Date: 2023-07-20 Tentative Ruling
1) Demurrer to Complaint
2) Motion for Leave to Intervene
3) Case Management Conference
[1] The Demurrer by Defendant Carr to the Complaint is taken off-calendar as moot, due to the filing of a First Amended Complaint on June 30, 2023 (ROA 66).
[2] The motion by proposed intervenors Constance Boardman and Mark Bixby (Collectively “Intervenors”) for leave to intervene is DENIED.
Intervenors move, under CCP section 387, for leave to intervene as a matter of right or, in the alternative, for permissive intervention. Plaintiff Pacific Airshow, LLC (“Airshow”) is suing Defendants City of Huntington Beach (the “City”) and Kim Carr for claims arising from the cancellation of the third day of a three-day air show in 2021, after an oil spill occurred. (FAC at ¶¶ 6-19.)
As an initial matter, the Court does not find that this motion is untimely. Although there is evidence Intervenors were aware of the settlement they wish to enjoin since May 9, 2009, (see Fink Decl. at ¶¶ 4-5, Exh. 10), there is no appreciable or persuasive evidence of prejudice caused by the delay of approximately 50 days. (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 574.)
Intervention is a statutory procedure through which a nonparty to an action may become a party by requesting leave of court to (1) join the plaintiff in claiming what is sought by the complaint, (2) unite with the defendant in resisting the plaintiff’s claim, or (3) demand anything adverse to both parties. (Code of Civ. Proc. § 387, subd. (b).)
Under the statute’s “mandatory” provision, a court “shall” allow a nonparty to intervene in the action 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).)
Under the “permissive” provision, a court “may” permit a nonparty to intervene in the action “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).)
First, Intervenors contend intervention is “mandatory” because “[r]esidents, taxpayers, and consumers are frequently found to have the right of mandatory intervention in litigation between the government and a private party.” (Mot. at 11, citing Perry v. Schwarzenegger (N.D.Cal. June 30, 2009, No. C 09-2292 VRW) 2009 U.S.Dist.LEXIS 55594, a *6; Bustop v. Superior Court (1977) 69 Cal.App.3d 66, 70.) No one denies that Intervenors are residents and taxpayers of the City. Nevertheless, neither of the cited cases supports Intervenors’ position, because taxpayer and resident status was clearly not the basis for allowing intervention in either Perry and Bustop; these cases involved, respectively, the “official proponents” of a bill being challenged and the parents of students who could be subject to mandatory busing in a plan to desegregate a school district. Similarly, Kobernick v. Shaw (1977) 70 Cal.App.3d 914, did not involve a motion to intervene at all. The issue in Kobernick is whether the Corporations Code barred limited partners, who had already been sued in the action, from bringing a cross-complaint on behalf of the partnership where the general partner had “left the state” and allowed a default judgment to be taken against the partnership.
Intervenors have not cited any authority for the broad proposition that they must be allowed to intervene in litigation between the government and a private party, because of their status as residents and taxpayers. Indeed, their position appears to be contrary to existing case law. (Squire v. City and County of San Francisco (1970) 12 Cal.App.3d 974, 978 [trial court did not abuse its discretion in denying taxpayer leave to intervene in action brought by union against the city and county of San Francisco where taxpayer argued intervention is necessary to protect the interests of the taxpayers] compare Redevelopment Agency of City and County of San Francisco v. Hayes (1954) 122 Cal.App.2d 777, 785 [intervenors who were residents, taxpayers and property owners in the blighted area that the board of supervisors sought to redevelop “obviously” had an interest in the litigation regarding the redevelopment plans] superseded by statute as stated in Green v. Community Redevelopment Agency (1979) 96 Cal.App.3d 491, 500.)
As to their alternate request for permissive intervention, Intervenors claim they have a “unique interest” here, because they are “plaintiffs in a taxpayer action under Section 526a” and “seek to enjoin the Airshow Settlement.” (Mot. at 13.) The Court is not persuaded. “The permissive intervention statute balances the interests of others who will be affected by the judgment against the interests of the original parties in pursuing their litigation unburdened by others.” (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036.) “[I]t is well settled that the proposed intervener's interest in the litigation must be direct rather than consequential, and it must be an interest that is capable of determination in the action.” (Id. at 1037.)
The fact that Intervenors may have an interest in the use of the City’s taxpayer funds to the extent they are used to pay the settlement, does not mean Intervenors have an interest in the issues of this litigation, which solely concerns the Airshow’s claims against the City for breach of contract and interference with prospective economic advantage and contractual relations. “An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner.” (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1037[emphasis added]. Any payment of money by the City to Airshow is the result of the settlement of the action. Intervenors’ interest is thus consequential, not direct.
Accordingly, the Motion to Intervene is denied. Because Intervenors have no standing in this action, they cannot seek injunctive relief, and their application for a TRO is also denied.
[3] The Case Management Conference is continued to August 28, 2023, at 9:00 a.m.
The City is ordered to give notice of all these rulings.