Judge: Steven A. Ellis, Case: 22STCV29023, Date: 2023-12-22 Tentative Ruling
Case Number: 22STCV29023 Hearing Date: December 22, 2023 Dept: 29
Tentative
The motion to intervene is GRANTED.
Background
Plaintiff
Elahe Mokhtarzadeh (“Plaintiff”) filed a complaint on September 6, 2022, against
Wade Hampton Link, Link Engineering Incorporated, and Does 1 to 50 for two
causes of action: (1) General Negligence and (2) Motor Vehicle Negligence,
based on an auto accident on September 9, 2020.
On
October 12, 2023, Progress Express Insurance Company (“Intervening Party”)
filed this motion for leave to intervene. No opposition has been filed.
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.)¿
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.”¿
“Stated differently, to
establish mandatory intervention, a proposed intervener must show (1) “ ‘an
interest relating to the property [or] transaction which is the subject of the
action’ ”; (2) the party 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’ ”; and (3) the party is not adequately represented by existing
parties.” (Edwards v. Heartland Payment Sys., Inc. (2018) 29 Cal.App.5th
725, 732.)
“A provision that whenever
judgment is secured against the insured or the executor or administrator of a
deceased insured in an action based upon bodily injury, death, or property
damage, then an action may be brought against the insurer on the policy and
subject to its terms and limitations, by such judgment creditor to recover on
the judgment.” (Insurance Code section 11580(b)(2).)
Judicial Notice
Intervening
Party requests judicial notice for the Minute Order in 202100559933CUPA -
Natalie
Wilt vs. Link Engineering Inc., where Intervening Party was granted leave to
intervene in a matter on behalf of Defendant Wade Hampton Link.
The
Court GRANTS judicial notice for this exhibit.
Discussion
In order
to intervene in an action, the intervening party must timely file a motion to
intervene in the action or proceeding if a provision of law confers an
unconditional right to intervene.
Here, on
September 6, 2022, Plaintiff filed a complaint against Defendant Wade Hampton
Link. Intervening Party filed this motion to intervene over a year later on
October 12, 2023. Defendant Wade Hampton Link died on February 9, 2021.
(Buckley Decl., ¶ 5.) Intervening Party became aware that Defendant Wade
Hampton Link’s wife Kim Link was no longer cooperating in the discovery process
in February 2023. (Id., ¶ 9.)
Intervening Party believes they have exhausted all methods for contacting Kim
Link. (Id., ¶ 10.) Intervening
Party states that they hired their counsel in August 2023 to begin the process
to intervene in the case. (Id.,
¶ 11.)
The Court finds Intervening Party has acted timely
in its motion to intervene based on Intervening Party discovered Defendant was
not complying with the discovery process and started the process to intervene
within the year.
Intervening Party argues mandatory intervention
should be granted as Intervening Party was the insurer for Defendant on the
date of the incident and is liable for any damages arising out of Defendant’s
alleged negligence. (Motion, 5:24-26.) Further, Intervening Party cannot file a
separate lawsuit as the legal issues are not independent of this underlying
suit, and lastly, Intervening Party’s interests are not being adequately
represented by the nonresponsive Defendant. (Id., 5-6:27-28, 5-7.)
Under Insurance Code section 11580(b)(2), an insurer can
be sued to recover on a judgment against an insured, or the
administrator/executor of the deceased insured.
Here, Intervening Party as
insurer for Defendant has an interest in the outcome of this matter per
Insurance Code section 11590(b)(2) as it was the insurer of Defendant at the
time of the accident and can be liable for the damages incurred in the outcome
of this matter. Further, Intervening Party has established its interests are
not current sufficiently represented by Defendant who is nonresponsive.
Therefore, Intervening
Party’s motion is GRANTED.
Conclusion
Accordingly, Progress
Express Insurance Company’s motion for leave to intervene is GRANTED.
Progress
Express Insurance Company 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 to give notice.