Judge: Nathan Nhan Vu, Case: 30-2021-01225093, Date: 2023-08-28 Tentative Ruling
Motion for Terminating Sanctions
Pursuant to the court’s order issued July 7, 2023, this matter has been CONTINUED to October 23, 2023, at 8:30 a.m. in Department N15.
Motion for Leave to Intervene
Infinity Insurance Company’s Motion for Leave to Intervene is GRANTED.
Infinity Insurance Company is ORDERED to file and serve Intervenor Infinity Insurance Company’s Complaint-in-Intervention, which is attached as Exhibit A to the Declaration of Jeannette D. Lawrence, within 7 days of this ruling.
Infinity Insurance Company moves for leave to intervene on behalf of Defendant Anthony Drew Molinar (Defendant Molinar).
Standard for Intervention
A non-party, who is referred to as an “intervenor,” may become a party to an action or proceeding between other persons by:
(1) Joining a plaintiff in claiming what is sought by the complaint;
(2) Uniting with a defendant in resisting the claims of a plaintiff; or
(3) Demanding anything adverse to both a plaintiff and a defendant.
(Code. Civ. Proc., § 387, subd. (b).)
The non-party must request leave to intervene from the court “by noticed motion or ex parte application,” which “shall include a copy of the proposed complaint in intervention or answer in intervention and set for the grounds upon which intervention rests.” Code. Civ. Proc., § 387, subd. (c).)
The court must grant leave to intervene if either of the following requirements are met:
(A) A provision of law confers an unconditional right to intervene; or
(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, subd. (d)(1).) This is referred to as mandatory intervention.
The court may grant leave to intervene, at its discretion, “if the [non-party] 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).) This is referred to as permissive intervention.
In general, the party seeking to intervene must have a direct and immediate interest in the outcome of the litigation (i.e., he or she must stand to gain or lose by direct operation of the judgment). (See Fireman’s Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303-305.)
“A person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation.” (Continental Vinyl Prods. Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 549.)
Examples of direct interests include a class member’s interest in class recovery, (see Mann v. Super. Ct. (1942) 53 Cal.App.2d 272, 280); an assignee’s interest in a plaintiff’s claim, (see Marc Bellaire v. Fleischman (1960) 185 Cal.App.2d 591, 597); or the interest of parties that might be subject to secondary or derivative liability following a judgment against the defendant, (see Robinson v. Crescent City Mill & Trans. Co. (1892) 93 Cal. 316, 319.
In general, Section 387 should be construed liberally in favor of intervention. (See Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1201.) In considering whether to exercise the court’s discretion to permit intervention, the court considers whether intervention will enlarge the issues raised by the original parties, and whether the reasons for intervention outweigh any opposition by the existing parties. (Truck Ins. Exch. v. Superior Court (1997) 60 Cal.App.4th 342, 346.)
Whether intervention should be allowed in a particular case “is best determined by a consideration of the facts of that case” and the decision is ordinarily left to the sound discretion of the trial court. (Fireman’s Fund Ins. Co. v. Gerlach, supra, 56 Cal.App.3d 299, 302.)
Intervention by Insurer
In this case, Infinity Insurance Company (Infinity) claims that it is Defendant Molinar’s liability insurer and that if Defendant Molinar is found liable to Plaintiff, Infinity may be responsible for paying a portion of the judgment. Infinity states that it is unable to stablish or maintain contact with Defendant Molinar and that Defendant Molnar may be unable to defend himself in this lawsuit.
Intervention 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. (See Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 385.)
“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,” which 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.” (Id. at p. 386.)
“Thus, where 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 the third party action against the insured, intervention is appropriate. The insurer may either intervene in that action prior to judgment or move under Code of Civil Procedure section 473 to set aside the default judgment. Where an insurer has failed to intervene in the underlying action or to move to set aside the default judgment, the insurer is bound by the default judgment.” (Id. at pp. 386-387.)
Here, Plaintiff Elizabeth Lockett has moved for terminating sanctions and Defendants have not and may not respond to the motion. If the court grants the motion, Infinity may be liable for a portion of the resulting judgment. Thus, Infinity has an unconditional right to intervene pursuant to Insurance Code section 11580 and Reliance Ins. Co. v. Superior Court. In addition, intervention is appropriate because Infinity has direct interest in that it may be subject to secondary or derivative liability following a judgment against Defendant Molinar.
Plaintiff states that she is not opposing the Motion for Leave to Intervene as long as Infinity is only stepping into the shoes of Defendant Molinar. Infinity responds that it intends only to assert the defenses available to Defendant Molinar and will not enlarge any of the issues in this case or unduly delay the proceedings.
Plaintiff also asserts that Infinity should not be allowed to argue that the motion for terminating sanctions should not apply to Infinity or that Infinity’s intervention renders the motion for terminating sanctions moot.
The issue of the effect of Infinity’s intervention on the motion for terminating sanctions, if any, is not before the court. Any party, including Infinity, may file the appropriate papers regarding the motion for terminating sanctions and the court will decide the issue at the hearing on that motion.
It is sufficient for now that Infinity has the right to intervene and even if it did not, the court would exercise its discretion to allow permissive intervention.
Infinity shall give notice of this ruling.