Judge Serena R. Murillo, Case 21STCV24638 2023-02-15 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV24638, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV24638 Hearing Date: February 15, 2023 Dept: 29

Gallagher Bassett Service’s motion for leave to intervene is GRANTED.

Legal Standard

Code of Civil Procedure, section 387, subdivision (d)(1) provides that the court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if “a provision of law confers an unconditional right to intervene,” or “[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.” Additionally, upon timely application, a court may “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.” (Code Civ. Proc., § 387, subd. (d)(2).) A court will determine the timeliness of a motion to intervene based on the date when a nonparty “knew or should have known their interests in the litigation were not being adequately represented.” (Ziani Homeowners Assn. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 282.)

Under Labor Code section¿3852, “[a]ny¿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, damage for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents.”¿ “If the employer is insured against workmen’s compensation liability, the insurer has the same right of action as the employer, or is subrogated to the employer’s right. In enforcing its cause of action the insurer may . . . join as party plaintiff in the suit previously filed by the employee.”¿¿(Burum¿v. State Compensation Ins. Fund¿(1947) 30 Cal.2d 575, 580-581.)¿¿

Further, Labor Code section¿3853¿provides that “[i]f the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.”¿¿

In terms of the form of the petition, Code of Civil Procedure section 387, subdivision (c) provides that a nonparty “shall petition the court for leave to intervene by noticed motion or by 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.”

Discussion

The Court finds that Gallagher has satisfied the filing requirements of Code of Civil Procedure section 387, subdivision (c) by filing a noticed motion and declaration setting forth the grounds for intervention as well as a copy of its proposed complaint in intervention. (Hosn Decl. ¶ 6; Exh. A.)

Gallagher seeks to intervene in the action under Labor Code sections 3852 and 3853 as an insurer of Plaintiff’s employer, with a right of subrogation. Gallagher notes that pursuant to Plaintiff’s workers’ compensation insurance policy, it has been obligated to pay workers’ compensation benefits to Plaintiff following the injuries alleged in Plaintiff’s complaint. (Id., ¶ 8.)

The Court finds that Gallagher is entitled to intervene under Code of Civil Procedure section 387. First, the Court finds that Gallagher’s motion is timely because Labor Code section 3853 allows a nonparty to join as a party plaintiff “at any time before trial on the facts.” Second, the Court finds that Labor Code sections 3852 and 3853 grant Gallagher the right to intervene under Code of Civil Procedure section 387 because Gallagher has a right of subrogation as the insurer of Plaintiff’s employer and has incurred an obligation to continue paying workers’ compensation benefits to Plaintiff pursuant to Plaintiff’s insurance policy. (Lab. Code § 3852; see also Burum, 30 Cal.2d at 580-581.) Gallagher may file a complaint-in-intervention to recover for the “total amount of compensation” paid to Plaintiff and related damages. (Lab. Code. § 3852.) Accordingly, the Court finds that Gallagher has sufficiently claimed an interest relating to the disposition of the action for purposes of intervention.

Conclusion

Based on the foregoing, Gallagher’s motion for leave to intervene is GRANTED.

Gallagher is ordered to file the proposed complaint-in-intervention attached to the motion as required under Code of Civil Procedure section 387, subdivision (e) with the Court within 10 days of this order.

Moving party is ordered to give notice of this ruling.