Judge: Michael E. Whitaker, Case: 22STCV14648, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV14648    Hearing Date: February 9, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Proposed Intervenor XL Insurance America, Inc. (“Intervenor”) seeks leave to intervene in this action per Code of Civil Procedure section 387 and Labor Code section 3853.  Neither Plaintiff Benjamin Pastrano by and through his Guardian ad Litem Gabriela Mendez (“Plaintiff”) nor Defendants Pro-A Motors, Inc., Employbridge LLC, Real Tie Staffing Services, LLC dba Select Staffing, and Washington Building, Inc. (“Defendants”) have filed oppositions to the motion.

ANALYSIS

Code of Civil Procedure section 387 permits intervention in a pending action when the proposed intervenor has an interest in the matter that is the subject of the litigation, or in the success of any party.  “If the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person's interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.”  (Code Civ. Proc., § 387, subd. (b).)  A liability insurer normally is not a party to an action by a third party against its insured, but may have the right to intervene in certain circumstances.  (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 220.)

Pursuant to Labor Code section 3852, any employer who pays or becomes obligated to pay workers’ compensation benefits for an industrial injury may bring an action for damages against a responsible third party.  An employer includes any employer or workers’ compensation carrier for purposes of this action.  (Lab. Code, §§ 3211, 3850.)  Labor Code section 3853 provides that where an action is brought by either an employer or employee against a third party who has caused injury to the employee, the employer or employee may join the action as a party plaintiff at any time before trial.  Thus, the workers’ compensation carrier can recover its damages by intervening in an action filed by the employee.  (Lab. Code, § 3853.)  Further, Labor Code section 3853 provides that an intervention is “timely” even on the eve of trial and even when a settlement has been reached between the existing parties.  (Mar v. Sakti Intl. Corp. (1992) 9 Cal.App.4th, 1780, 1785.)

Here, Intervenor has demonstrated that it has paid medical and indemnity benefits to and on behalf of Plaintiff in connection to Plaintiff’s workers’ compensation claim.  (Custurea Decl., ¶ 8, Ex. B.)  The workers’ compensation claim remains open, with benefits continuing to accrue. [AW1]  (Id.)  Thus, Intervenor is subrogated to the rights of Plaintiff’s employer as a workers’ compensation carrier and is entitled to recover in this lawsuit the workers’ compensation benefits paid to Plaintiff.  Accordingly, the Court finds that Intervenor has a sufficient interest in this action to support its intervention. 

CONCLUSION AND ORDER

Accordingly, the Court grants Intervenor’s unopposed motion for leave to intervene pursuant to Code of Civil Procedure section 387 and Labor Code section 3853. and orders Intervenor to file and serve the proposed Complaint in Intervention within 10 days of the hearing on the motion. 

The Court orders Intervenor to give notice of this Court’s orders and file a proof of service of such.