Judge: Steven A. Ellis, Case: 22STCV34079, Date: 2023-11-28 Tentative Ruling

Case Number: 22STCV34079    Hearing Date: November 28, 2023    Dept: 29

Tentative

The motion is granted.

Background 

Plaintiff Edgar Diego commenced this action on October 21, 2022 against Defendant Welcome to The Degnan, LLC alleging causes of action for general negligence and premises liability arising out of Plaintiff’s fall through a skylight while working for a subcontractor. 

On October 25, 2023, proposed Intervenor United Wisconsin Insurance Company (“Intervenor”) filed the instant motion for leave to intervene in the action.

No opposition has been filed.

Trial is set for April 19, 2024.

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 Intervenor 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. (Declaration of Christopher J. Capalbo, ¶ 3;¿Ex. “A.”)¿¿ 

Intervenor seeks to intervene in the action¿under¿Labor Code section 3853 as an¿insurer¿of Plaintiff’s employer, with a right of subrogation.  Intervenor’s declaration in support provides that it has paid certain benefits to and on behalf of Plaintiff; the workers’ compensation case remains open and benefits continue to accrue that will become part of Intervenor’s damages. (Id. at ¶ 4.)¿ 

The Court finds that Intervenor is entitled to intervene under Code¿of Civil Procedure section 387.¿First,¿the Court finds that Intervenor’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¿Intervenor the right¿to intervene under Code of Civil Procedure¿section 387 because Intervenor has¿a right of subrogation as the insurer of Plaintiff’s employer. (Lab. Code §§ 3952, 3853; see also¿Burum, 30 Cal.2d at 580-581.) Intervenor 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 Intervenor has sufficiently claimed an interest relating to the disposition of the action for purposes of intervention.¿¿ 

Conclusion 

Based on the foregoing, Intervenor United Wisconsin Insurance Company’s motion for leave to intervene is GRANTED.¿¿ 

Intervenor is ordered to file the proposed¿complaint-in-intervention attached to the declaration of counsel as required under Code of Civil Procedure section 387, subdivision (e), with the Court within 14 days of this order.¿¿ 

Moving party is ordered to give notice.