Judge Ralph C. Hofer, Case Number: 23GDCV00284, Date: 2023-12-08 Tentative Ruling

Plaintiff Julieta Paez has filed this action alleging that in February of 2021, plaintiff walked into a commercial building located on private property on Brand Boulevard owned, operated, maintained, and controlled by defendants Alta Construction and UBS Realty Investors LLC. Plaintiff alleges that while moving into the facility on surfaces and other points of passage intended for public use, plaintiff slipped and fell due to oil that was on the floor, and fell to the ground, sustaining injuries.

Plaintiff alleges that defendants’ employees did not take steps prior to plaintiff’s fall to maintain dry walking surfaces, did not place any caution tape or safety cones near the area, and did not place a monitor to direct patrons to avoid the hazard.

On March 7, 2023, plaintiff filed an Amendment to Complaint, substituting the true name of defendant 330 North Brand, Inc. for the fictitious name of Doe 1.

Defendant 330 North Brand has filed a cross-complaint for indemnity against Alta Construction, Inc. and Roes 1 to 100, alleging that cross-defendants are legally responsible for the acts, occurrences, and damages alleged and are required, and obligated, and should be ordered to indemnify and hold harmless cross-complainant from any and all damages assessed against them by way of plaintiff’s complaint.

Third party and prospective intervenor Pacific Compensation Insurance Company (Pacific) argues that it is entitled to intervene in this matter, as it is a workers’ compensation carrier which has paid workers’ compensation benefits to and on behalf of plaintiff Julieta Paez arising out of the incident out of which this case arises, as plaintiff at the time of the injury was in the course of her employment with Tuttle Family Trust. The intervenor indicates that it is subrogated to the rights of plaintiff in a claim for reimbursement of workers’ compensation benefits.

(b) An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:

(c) A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.

(d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(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.

(2) 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.

(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.

(f) Within 30 days after service of a complaint in intervention or answer in intervention, a party may move, demur, or otherwise plead to the complaint in intervention or answer in intervention in the same manner as to an original complaint or answer.”

Labor Code section 3852 allows an employer who becomes obligated to pay compensation to intervene in a claim brought against a third person:

“Any employer who pays or becomes obligated to pay compensation… may likewise make a claim or bring an action against the third person. In the latter event, the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable…”

Intervenor Pacific here relies on Labor Code section 3853, which provides that if an action is brought by either the employee or employer against a third person, “the other may, at any time before trial on the facts, join as a party plaintiff or shall consolidate his action, if brought independently.”

Although the statutes in this chapter of the Labor Code refer to the “employer,” that term is defined to include the employer’s workers’ compensation insurer under Labor Code § 3850 (b): “‘Employer’ includes insurer as defined in this division.”

“ ‘Insurer’ includes the State Compensation Insurance Fund and any private company, corporation, mutual association, reciprocal or interinsurance exchange authorized under the laws of this State to insure employers against liability for compensation and any employer to whom a certificate of consent to self-insure has been issued.”

Here, the workers’ compensation insurer indicates that the cause of action arises out of an injury sustained during employment with the insured employer, for which Pacific has become obligated to pay and has paid to plaintiff monies for indemnity and medical expenses. [Johnsen Decl., paras. 2, 3].

It appears that the insurer is properly asserting its right under a “provision of law” which “confers an unconditional right to intervene” as permitted under CCP § 387 and is properly seeking under the Labor Code provisions to intervene in this matter before trial. There is no opposition here, so evidently plaintiff does not object to permitting intervention. The motion is granted.

The intervenor is ordered to comply with the procedures governing the intervention, as set forth in CCP § 387(e), set forth above.

UNOPPOSED Motion by Pacific Compensation Insurance Company to Intervene as Party Plaintiff is GRANTED, pursuant to CCP § 387 (d)(1)(A), as the provisions of law set forth at Labor Code §§ 3852 et seq. confer an unconditional right to intervene.

Intervenor Pacific Compensation Insurance Company is ordered to efile with the Court by 4 p.m. this date a separate executed copy of its attached Complaint-in-Intervention for Recovery of Workers’ Compensation Benefits, and to fully comply with CCP § 387(e).

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